contrary acts of Injury by doing evil in stead of good Thirdly For the security of the people and anticipation of Error and Fraud and that evident probation may be had Men do most profitably order deeds to be done in such a palpable and plain form as may easily appear in which there can be no injury seing the manner of doing these deeds is free and in our power Thus though the dispositive will of the Proprietar be sufficient to alienate any thing that is his and to constitute the Right thereof in another Yet by the Civil Law and custome of most Nations delivery or apprehension of Possession for conveying the Right of Goods and Seasing is necessar for conveying of the Rights of Lands by the Feudal Law and so by our Customs Assignations are not effectual to transfer Personal Rights till Intimation follow Our Custome also appoints Write to be made where it is easie and ordinar to be done and therefore as the penalty of the neglect or contempt thereof doth exclude Witnesses in matters of importance and admitteth only Write or Oath of party in cases where Write is accustomed So the Romans ordained that because the agreements of the people when they stood in meer Conference that words were easie to be mistaken by themselves or Witnesses that therefore the parties should perfeit such Contracts by a solemn stipulation wherein the one party did interrogat if the other did agree to such terms as he exprest and the other immediatly repeated his answer closing with him in terms and therefore if they did not so stipulate they refused them Action upon naked paction Fourthly Nations for the flourishing of their Families do otherwise dispose of their Estates and Possessions and their Laws do order them otherways than the Law of Nature doth for in the most part the Heretage and Succession in the whole Land-rights belongs to the eldest Son as Stem and Line of the Family and the Parents are presumed to provide the rest of the Children with competent Portions though by the Law of Nature the Right of Succession doth belong to all and even in this positive Law altering the course of the Law of Nature hath its example from the Judicial Law of God by which the Males exclude the Females and the eldest hath a double Portion Fifthly According to the humours and inclinations of People men do lay the heavier penalties upon the Transgression of such Laws as stand in opposition thereunto which may be altered when these inclinations alter And so the Lord did frame the Law of Moses for the humors of that People in some things permitting without punishing the transgression of the most palpable and weighty Laws of Nature as in Poligamy and Divorce and also extending the proportion of Equality observed in the Law of Nature in Restitution and Retribution as in Theft hence it appears how necessar the Laws of men are yetsurely they are most happy whose Laws are nearest to Equity and most declaratory of it And lest altering of the effects thereof except in cases eminently profitable like unto these now pointed at yea and the Nations are more happy whose Laws have entered by long custome wrung out from the Debates upon particular Causes until it come to the Consistence of a fixed and known Custome for thereby the conveniencies and inconveniencies through a tract of Time are experimentally seen so that which is found in some cases convenient if in other cases afterward it be found inconvenient it proves abortive in the womb of Time before it attain the maturity of a Law But in Statutes the Lawgiver must at once ballance the conveniencies and inconveniencies wherein he may and often doth fall short and there do arise casus Incogitati wherein the Statute is out and recourse must be had to Equity But these are best which are approbatory or correctory of experienced Customs and in a customary Law though the people run some hazard at first of their Judges Arbitriment Yet when that Law is come to a fulness and consistence they have by much the advantage in this that what custom hath changed is thrown away and obliterat without memory or mention of it but in Statutory Written Law the Vestige of all the alterations remain and ordinarily increase to such a Mass that they cease to be Evidences and Securities to the people and become Labyrinths wherein they are fair to lose their Rights if not themselves and must have an implicite Faith in these who cannot comprehend them without making it the work of their life 15. Our Customes as they have arisen mainly from Equity so they are also from the Civil Canon and Feudal Laws from which the Terms Tenors and Forms of them are much borrowed and therefore these especially the Civil Law have great weight namely in cases where a custome is not yet formed but none of these have with us the Authority of Law And therefore are only received according to their Equity and Expediency Secundum bonum equum And though it may appear from some Narratives of our Statutes that the Parliament doth own the Civil and Canon Law to be our Law as in the Revocation of King James the fourth Parliament 1493. c. 51. where it is said and since it is permitted by the constitution of Law Civil and Canon that Minors may revoke Par. 1540. cap. 80. So likewise Nottars Forgers of false Writs are ordained to be punished after the disposition of Common Law Par. 1551. cap. 22. And in the Act establishing Religion all Acts contrair or Constitutions Canon Civil or Municipal are abrogated Par. 1567. cap. 31. Yet these amount to no more then that these Laws are an example after the similitude whereof the Parliament proceeded And though in the cases of Falshood the punishment be assumed as in the Civil Law which will make that a part of our Law it will not infer that in so far it was our Law before much less in the whole And there is reason for the Abrogation of the Canon Law at the establishing of the Protestant Religion because in the Popish Church it was held as an Authoritative Law but since it is only a Law as to these Cases that were acted by it when it was in vigour and in the rest only as our Customes assume some particulars thereof according to the weight of the matter But for the full Evidence of the Contrair there is an express and special Statute declaring this Kingdom subject only to the Kings Laws and no other Soveraigns Laws Par. 1425. cap. 48. Par. 1503. cap. 79. Yea the Law of Scotland regulats the Succession and Rights of Scottish men in Scotland though dying abroad being resident there as was found in the case of Collonel Hendersons Children who having died in Holland Legatted upon Heretable Bonds according to the custome there yet they were found not to be conveyed by Testament but belonging to his Heirs according to the Law of Scotland Dury 9. Decemb. 1623. The
in the Superiours hands but if within the half they are not null as to the Vassal but are null as to the Superiour and exclude him from no Casualities of his Superiority as Ward c. But as the half may be sub-sett so any other right less then the value of the half is sustained as an Infeftment of warrandice March 6. 1611. Cathcart contra Campbel The like holds of Infeftments of Liferent but if the Disposition or Infeftment be granted to the Vassals appearand Heir in linea recta it infers not Recognition be-because the Superiour is not prejudged by change of his Vassal but recognition was found incurred by a Disposition and Infeftment to the Vassals Brother though his appearand Heir for the time seing there remained hope of issue in the Disponer and so his Brother was not alioqui successurus Spots recognition Advocat and his Son contra the Earl of Cassils and Collane Feus of Ward-lands granted by the Kings Ward-vassals after the Act of Parliament 1457. and before the Act of Parliament 1633. were found not only to be free from the ward-liferent-escheat or recognition of the Kings Vassals but also that the Sub-vassals Feu did not fall by his Superiour the Kings Vassals forefaulture because the Act of Parliament expresseth a Confirmation of such Feus which therefore needs not be past in Exchequer without which there is no doubt but Ward and Non-entry are excluded And by a Confirmation in Exchequer Forefaulture would be excluded without question even after the Act of Parliament 1633. and therefore the ratification and approbation of Feus by the Act 1457. when it was in vigour must also secure against Forefaulture of the granter of the Feu as was found February 12. 1674. and January 23. 1680. Marquess of Huntly contra Gordoun of Cairnborrow whose Feu being granted after the Act of Parliament 1457. and before the Act 1606. was sustained against a Donatar of his Superiours Forefaulture The like though the Feu was renewed upon Resignation in favorem not being ad remanentiam November 16. 1680. Campbel of Silver-craigs contra Laird of Achinbreck and Earl of Argyle 33. Infeftments blensh are such whose reddendo is a small elusory Rent as being rather an acknowledgement of then prosite to the Superiour and therefore ordinarily it beareth si petatur tantum as a Rose penny Money or the like and these are not counted blensh Rights unless they bear in name of blensh Ferm or if they bear not si petatur or if it be a yearly growth or service it is not due and may not be demanded at any time unless it be demanded within the year at the Term as a Stone of Wax or a Pound of Pepper February 16. 1627. Lord Semple contra Blair Where the like is observed to have been before June 18. 1611. Bishop of St. Andrews contra Galloway The like found where the reddendo bore si petatur tantum June 15. 1611. Bishop of St. Andrews contra Tersons So Blensh Duties of Lands holden of the King or Prince are declared only due if they be asked yearly and no price can be put thereupon by the Exchequer Parliament 1606. cap. 14. Yet seing by Act of Parliament the King is not to be prejudged by neglect of his Officers who ought yearly to call for his Blensh Duties whereof many are considerable therefore the Exchequer continues to exact the Kings Blensh Duties though not demanded within the year There is another part of the Act excluding all Liquidations of Blensh Duties in specie which therefore should be so exacted though not within the year unless the Vassals voluntarly offer a price in these Blensh Ferms there is no ward and marriage befalling to the Superiour in which it differs mainly from ward 34. Infeftments Feu are like to the Emphyteosis in the Civil Law which was a kind of Location having in it a pension as the hyre with a condition of Planting and Pollicy for such were commonly granted of Barren Grounds and therefore it retains still that name also and is accounted and called an Assidation or Location in our Law But because such cannot be Hereditary and perpetual all Rentals and Tacks necessarly requiring an Ish therefore these Feu-holdings partake both of Infeftments as passing by Seasing to Heirs for ever and of Locations as having a Pension or Rent for their reddendo and are allowed to be perpetual for the increase of Planting and Pollicy 35. In what cases Feus are allowed of Ward-lands hath been now shown in other cases they are ordinarly allowed where they are not prohibit so we shall only need to speak of cases wherein they are prohibit and void and that is first In the Patrimony of the Crown which is annexed thereto and cannot be set Feu by the King without consent of Parliament by their Act of Dissolution bearing great seen and reasonable Causes of the Realm by Sentence and Decreet of the whole Parliament But Ratifications which pass of course in Parliament without report from the Articles will not supply the dissolution of the annexed property or validat Infeftments thereof even though the Ratification bear a Dissolution Upon which ground the Earl of Mortouns Right to the Earledome of Orkney was reduced February 25. 1670. Kings Advocat contra Earl of Mortoun Neither can the annexed property be disponed by the King but only in Feu after the Act of Parliament 1597. cap. 234. And all Infeftments Tacks Pensions Gifts Discharges granted before lawful Dissolution in Parliament or after Dissolution yet contrary to any of the conditions of the same are declared null of the Law by Action or Exception as well as to by gones as in time coming Par. 1597. cap. 236. Par. 1455. cap. 41. which is confirmed and extended to Feus not only to be granted of Lands but to Feus granted of the Feu-Ferm-Duties which was a device invented to elude the Law Par. 1597. cap. 239. 36. Secondly Feus of the annexed property after Dissolution may not be set with diminution of the Rental the Feu-duty not being within the new retoured Duty Par 1584. cap. 6. And that it may appear whether the Rental be diminished or not before they pass the Seals they must be presented to the Thesaurer and Comptroller and registrate in his Register and the Signature subscribed by him otherways they are null Par. 1592. cap. 127. And such Feus set without consent of the Comptroller by his subscription Registrat in his Register are again declared null Par. 1593. cap. 171. The Comptrollers Office hath been of a long time adjoyned to and in the same Commission with the Thesaurers Office or Commission of the Thesaury What Lands and others are annexed to the Crown appeareth by the several Acts of Parliament made thereanent consisting mainly of forefaulted Estates and Kirklands after the abolishing of the Popish Clergy which because they were presumed to have been most part mortified by the Kings of Scotland therefore the intent of their granting ceassing by
what the meaning of the Clause cum piscationibus simply or of fishing in salt Water can Import seing there are common freedoms of every Nation to Fish into the Sea or into Brooks or Rivers for common fishes and therefore needs no special Concession from the King or other Superiour but the use thereof may be first that it may be the Title or foundation of prescription of Salmond-fishing not only in fresh-water but in the Sea at the Water-mouth where they are frequently taken And also that in other fishings if a prescription run of interrupting and hindering others to fish whatsoever sort of fish it will constitute a property thereof which could not consist without this clause or the like as a Title neither could it be comprehended as Annex or Connex of Lands or as a Servitude being a distinct right having so little respect to Land 70. There is a special way of fishing by Cruives or Zaires both in fresh water and salt all such Cruives are absolutely prohibite to be set within Rivers in so far as the Tide flowes as being destructive to the frey of all fishes Parliament 1424. cap. 11. renewed Par. 1477. cap. 73. Par. 1581. cap. 111. And as to other Cruives in fresh water they are also prohibite by the said last Statute except such as are Infeft in Cruives Lynes or Loups within fresh water who are to enjoy the same according to their Rights keeping Saturdays Slop and the due distance betwixt the Hecks the distance of the Hecks by the Act of Parliament 1477. cap. 73. is exprest to be three inches conform to the Statute made by King David but the Act of Parliament 1489. cap. 15. expresseth the distance to be five inches conform to King Davids Act And in both these Statutes besides the distances aforesaids Saturdays Slop is appointed and likewise that the mid-stream by the space of five foot be always free and that no Cruives be made use of in forbidden time of year when Salmond may not be taken which is declared to be from the Feast of the Assumption of the Virgin Mary unto the Feast of Saint Andrews in Winter Parliament 1424. cap. 35. Few debates have occurred concerning Cruives notwithstanding the great notice thereof by so many of our Kings One did lately occur and was fully debated in presentia betwixt the Heretors of the Water of Don and the Town of Aberdene which was mainly decided on January 26. 1665. The case was thus The Town of Aberdene having changed a Cruive-dyke to another place within their own bounds and built the same there again of new whereupon the Heretors who had right to the Salmond-fishing upon the Water of Don above these Cruives raised a Declarator against them wherein after large disputes concerning Saturdays Slop and the mid-stream and the distance of the Hecks and the height of the Cruive-dyke and whether it ought to be built sloping or perpendicular and whether it might be changed to the prejudice of the Heretors The Lords found that the Town of Aberdene might change the Cruive-Dyke keeping it within their own bounds and having no more Dykes but one but found that seing they had a Cruive past memory without interruption which had determined the height and frame thereof they found that the new Dyke behoved to be built in all things conform to the old and with no more detriment to the saids Heretors fishing then was formerly before the water had pooled at the old Dike and so it was not determined how high a Cruive-dyke might be or whether it behoved to be sloping or not where prescription had not determined which is very seldom It was also found that the distance of the Hecks ought to be three inches conform to the Act of King James the third Par. 1477. cap. 73. and not five inches according to the Act of King James the fourth Par. 1489. cap. 15. which mentions five inches which the Lords found to be a mistake in the Transcribing or Printing of the Act of Parliament in respect that both this and the former Act relates to the Statute of King David as the pattern thereof which mentions but three inches and that Hecks of five inches wide will be of no use nor hold in any Salmond The Lords also found that the Saturdays Slop behoved to be observed not only in one Cruive but in all the Cruives of the Dyke and that by pulling up the Hecks of each Cruive by the breadth of an ell to continue from Saturday at six a Clok till Monday at Sunrising and the Lords found that part of the Statute concerning the mid-stream to be indeed distinct from Saturdays Slop but they found that part of the Statute concerning the mid-stream to be in desuetude in all the Cruives of the Kingdom and that it is not repeated by the Act of King James the sixth Par. 1584. cap. 111. and therefore found the same not obligatory notwithstanding that in the late Act of Parliament 1661. there is an Act Ratifying all the old Statutes concerning Cruives which was alledged to revive that point of the mid-stream which the Lords did not respect as a general Law albeit the Confirmation did run in these terms because it past the Parliament without notice as an ordinary Confirmation at the impetration of their pursuers and did not pass the Articles and was not appointed to be Printed as a publick Law 71. Milns are not carried as part and pertinent because they are esteemed as separata tenementa requiring a special Seasine unless the Lands be in Barronia for then Infeftment in the Land carries the Milns thereon yet a Miln being built upon a Liferenters Land after her Infeftment bearing cum molendinis was found to belong to the Relict though Milns was not in the Dispositive Clause Nor was she in Conjunct-fee of a Barrony but she was not found to have right to the astricted Multures of any Lands but her Liferent Lands February 16. 1666. Lady Otter contra Laird of Otter 72. The Priviledge of Brewing being designed for publick use for common Hostlaries the inspection whereof is committed to the Judges ordinary Magistrates of Burghs Sheriffs Bailies and Barrons who are appointed to settle Hostlaries in convenient places and to visite their measures if they be sufficient and the goodness of their Ale Par. 1535. cap. 17. And the saids Magistrates to Burgh or Landward are ordained to see reasonable prices for Meat and Drink in Hostlaries with power to deprive them of their priviledge if they transgress so that a Barrony carries that priviledge though not exprest but Infeftments of other Tenements carry it not unless it be expresly granted by the King immediatly or by progress that is that all the Superiours interveening betwixt and the King have that priviledge July 25. 1626. Stuart contra Brewers but in possessorio the Proprietars Infeftment bearing cum brueriis will be sufficient and presume the progress unless that priviledge be craved to be reduced wherein the
power 〈◊〉 detain the whole Fruits of the Benefice in his own hands as is clear in the said last Act Par. 1592. cap. 115. Thirdly Patrons are Tutors and Guardians to their Church without whose consent the Incumbent can set no Tack longer then for three years Par. 1594. Cap. 200. Patrons had also an indirect interest in their own Benefices where the Ministers had an ordinary Stipend settled to them by long custom or modification yet far within the worth of the Benefice The Patrons used to present them to the Benefice but withal took Tack of them to confident persons to their own behove carrying the superplus of the profite of the Benefice over and above the accustomed Stipend of their predecessors which hath not been quarrelled as a Symoniacal Paction or Dilapidation It seems also that Patrons for resemblance of personal Patronages ought to be Alimented out of the Benefice if they come to necessity according as their Benefice may bear though there hath occurred no occasion to question or try this point but by the Act of Par. July 23. 1644. Session 1. c. 20. The power of disposing of the vacant Benefice or Stipend was taken from the Patron and Stated in the Presbytrie and Paroch to be disposed upon for pious uses and by Act of par 1949. c. 39. The power of presentation is also taken away yet thetitle 〈◊〉 unsitly design that Act an abolution of patronage for there is no more there taken away but the power of presentation but on the contrary where the patron could have no Interest in the Benefice of Teinds but indirectly as aforesaid that declares the Heretable Right of the Teinds over and above the Stipend to be in the Patron but with necessity to dispone the same to the Heretors for six years purchase but these Acts are now Rescinded and patrons returned to their ancient Rights but they are excluded from the Fruits in the Vacancie which are applyed to pious uses for seven years and thereafter during his Majesties pleasure par 1661. cap. 52. and the Vacancies for seven years after the year 1672. are applyed to Universities par 1672. cap. 20. Ecclesiastical Benefices were so ordinarly patronat that there were scarce any free but all were presumed o be patronat and where the right of patronage did not appear to be established in any other the Pope was presumed patron before the Reformation and after the Reformation the King is presumed patron jure Corona where the right of another patron appeareth not There are other patronages belong to the King jure privato as when the King or his predecessors acquired any rights of patronages from any private person or when the King or his predecessors founded or doted the Benefice or when any Lands or Baronies fall in the Kings hand as Superiour by recognition or forefaulture all such having annexed thereto or comprehended therein the Advocation Donation and Right of patronage of any Kirk the King doth thereby become patron all those patronages are at the Kings dispose and transmissible to any Subject by the Kings proper deed either annexing or incorporating the same in Baronies or Lordships or by distinct Gifts for the patronage doth ordinarly pass as annexed to Lands Charters of Burghs Baronies or Lordships yet they may pass without Infeftments as jura incorporalia But there are other patronages which by Act of Parliament are annexed to the Crown either expresly or when Baronies Lordships or Benefices are annexed to the Crown if therein patronages of any Benefice were comprehended they are annexed though not exprest for Barony or Benefice are nomina universitatis being united and erected and therefore the Barony or Benefice without expressing Patronage do carry the same by Resignation Appryzing Adjudication Recognition or-Forefaulture as well as Salmond fishing or Milns But these Patronages being a part of the annexed Patrimony of the Crown cannot be disposed by the King without a publick Law or by a special Act of Dissolution for particular reasons of publick good anterior to the Kings Gift and Ratifications in Parliament which pass of course and are accounted but private Rights which will not establish the same though in the Ratification there be a Clause of Dissolution which is always understood to be as a private Right and not a publick Law The Patronages of all Bishopricks belong to the King who designs the person to be Bishop and though the Chapter may use the formality of Election they do not refuse the Kings Designation The order of this Election is prescrived Parliament 1617. cap. 1. where the Dean and Chapter are ordained to choose the person whom the King pleases to nominat and recommend he always being an uctual Minister of the Kirk who being Elected hath sufficient right to the Spirituality of his Benefice but not to the Temporality till he have a Charter from the King and do homage and swear obedience to him but the Arch-bishop of Saint Andrews is to be elected by the Bishops of Dunkel Aberdene Brichen Dumblane Ross Murray Orknay Caithness the Principal of Saint Leanards Colledge the Arch-Dean of Saint Andrews the Viccars of Saint Andrews Leuchers and Couper or most part of them Parliament 1617. cap. 2. And by the same Act the Arch-Bishop of Glasgow is to be Elected by the Bishop of Galloway Argile and Isles and the ordinar Chapter of Glasgow or most of them the Bishop of Galloway being Conveener of the Electors and now the Bishop of Edinburgh since that Bishoprick was Erected is by the Erection made an Elector and Conveener The King is also Patron of many Laick Patronages and there are several other Laick Patronages belonging to Subjects Ecclesiastick Patronages belong now only to the Bishops to whom some Kirks are patrimonial or Mensal the Fruits whereof are a part of the Bishops Benefice and the several Paroch Kirks are not distinct Benefices but partes beneficii but most be served by the Bishop himself or a Minister who is a Stipendiary and by the 19. Act Parl. 1633. all Ministers are appointed to be provided with sufficient Stipends being eight Chalders of Victual or eight hundereth Merks at least except in singular cases referred to the Commissioners for plantation of Kirks who are authorized as Commissioners of Parliament to value Teinds modifie Stipends and grant Localities for fixing thereof upon particular Lands The Bishops have the Patronage of some Kirks without their Diocies and do present to the Bishop of that Diocie but if the Bishop should acquire any patronage of a Kirk within his own Diocie that Kirk cannot be Patronat but becomes free and is conferred by the Bishop pleno jure for he cannot present to himself yet by the Collation the person Collated is not a Stipendiar but is Parson or Viccar and hath the full benefite of the Fruits except in so far as they are restricted by Tacks set lawfully by them or their Predecessors The common Kirks which were to be provided by the Bishops and their
they be done before year and day expire being after the Rebellion And so Arrestments or Assignations even though before Rebellion have no effect after year and day is run because these being but Personal and Liferent-escheat a reall Right flowing from the Superiority whereby the Vassal is denuded of the Liferent Therefore the effect of these Personal rights ceaseth But all reall rights flowing from the Vassal before the Rebellion as Fews Annualrents Tacks Appryzings and Adjudications whereupon there was a Charge are effectual and not excluded by Liferent-escheat though these are excluded by Ward which is a Casuality following the nature of Fewdal Rights Whereas Liferent-escheat ariseth not from the Nature of Fies but is introduced by Law or Custom and therefore the Fie falls in the hands of the Superior as it was in the hands of the Vassal with all the Real burdens he had fixed upon it Neither does Posterior voluntary Infeftments though for debts prior to the Rebellion and granted before Declarator exclude the Liferent-escheat Jannuary 18. 1611. Samuel Ord contra the Laird of Craigkeith The like where the Infeftment was granted after Rebellion but within year and day January 23. 1627. James Wallace contra Thomas Porteous Where there is an exception insinuat unless there had been an prior obliegment before the Rebellion to grant thelnfeftment as if in that case though in cursu Rebellionis it would be sufficient to exclude the Liferent The like was found that Infeftments upon a voluntary Disposition made in cursu Rebellionis within the year and for a debt due before Rebellion excluded not the Liferent-escheat March 19. 1628. Mr James Rae contra Buckie Hope Horning Laird of Frendraught contra Meldrum Gordon of 〈◊〉 contra Gordon of Haddo But Infeftments in cursu Rebellionis upon special obliegments to grant the same before Denuneiation are valid vide Tit. 14. § 53. As to Legal Diligences of Creditors whither Appryzing and Infeftment thereupon being after Rebellion will exclude the Liferent-escheat was declared the last Title in the second effect of Appryzings the sum whereof is that they are thus far preferablé to voluntary Dispositions That being done in Cursu Rebellionis for a debt before Rebellion There being Infeftment or Charge in cursu Rebellionis they exclude the Liferent Secondly Single-escheats require general and special Declarator Liferent-escheats require but one Declarator for all wherein the Title is the Horning the Gift and the Superiors Seasine without farder instructing the Superiors Right and without Continuation July 2. 1622. Carmichael contra Lermont March 6. 1624. Dowglas contra Eastnesbit June 23. 1625. Viscount of Stormont contra And there is no necessity to instruct the Lands holden of that Superior by the Defender The reason is because that is presumed unless the Defender disclame or that the Superior be a Singlar Successor never acknowledged by the Vassal or his Predecessors 27. Shipwrack and Wath Goods or Treasures in the ground whose owner appeareth not are Confiscat as Caduciarie whereby the owners are presumed to Relinquish or loose the same And so a jure sup cadunt and the things become nullius and yet belong not to the first Possessor as things relinquished do by the Common Law but do belong to the King by his Royal Prerogative or to others having Right from him We have spoken of these before in the Title Real Rights And shall only add this that by that just and Noble Statute Par. 1429. cap. 124. It is declared that where Ships break in this Countrey the Ship and Goods shall be escheat to the King if they belong to such Countries as use the like Law anent Ship-wrack in there own Land otherwayes they shall have the same favour as they keep to Ships of this Land broken with them It is also declared amongst the Statutes of King Alexander the Second cap. 25. That if any Living Man or Beast as Dog Cat c. come quick out of the Vessel the same shall not be accounted Ship-wrack but shall be preserved to the Owner claming and instructing his Right within year and day Or otherwayes it shall belong to the King So was it found where an ox escaped alive out of the Ship and the Admirals Decreet finding the same Escheatable as Shipwrack was Suspended Simpliciter December 12. 1622. Hamilton contra Cochran In which case nothing was alleiged but this old Statute the genuine meaning whereof seems only to be where any person came to Land the Ship and Goods should not be confiscat as Wrack but the posterior Act Par. 1429. cap. 124. Repeats not that provision but regulats the matter according to the custom of other Nations to do to them as they do to us without any other Limitation And therefore where some Persons came to Land the Ship being broken the same with the Goods dispersed were Confiscat If Confiscation in the like case should be proven to be the Law or Custom of that place to which the Ship belonged January 20. 1674. Jacobson contra Earl of Crawfoord 28. Forefaulture is the great Confiscation comprehending all other Penal Confiscations It is extended to the taking away of Life Lands and Goods Par. 1424. cap. 3. For it is the Penaltie of the highest Crime to wit Treason which at first and by its native Signification it expresseth Crymes against the Life of any partie under Trust So the Slaughter of any person under Trust Credit or power of the Slayer is declared Treason Par. 1587. cap. 51. 29. Thence it is also called Treachery and the Committers thereof Traitors And because of that Trust betwixt the King and all the Leiges as their Superiour and Soveraign The chief point of Treason is against the Kings Person as appeareth by the Act last Cited These also who without cause wilfully raise a fray in the Kings Host commit Treason Par. 1455. cap. 54. Upon the same ground because of the Trust betwixt the Superiour and his Vassal such Crimes against the Superiour is also called Treason and thereby the committer Looseth for ever all Lands and Heritage he held of that Sùperiour quoniam Atachiamenta cap. 19. But this Treason infers not a Simple Forfaulture but only is a ground of Recognition But as now the Terms are take Treason and Forefalture of Life Lands and Goods are adequat and wherever the one is exprest in any Act of Parliament the other is understood for the Stryking or Slaying of any person within the Parliament House during the time of Parliament within the Kings Inner-Chamber Cabinet or Chamber of Peace the King being within his Palace or within the Inner-tolbooth the time of Session sitting or within the Privy Council-House the time of the Council sitting or in his Majesties Presence any where is declared Treason Par. 1593. cap. 173. Impugning the Dignity or Authority of the three Estates of Parliament or procuring any Innovation or Diminution of there Power is prohibit under pain of Treason Par. 1584. cap. 139. And also declyning the King and
THE INSTITUTIONS OF THE LAW OF SCOTLAND Deduced from its Originals and Collated vvith the Civil Canon and Feudal-Lavvs and vvith the Customs of Neighbouring Nations The first PART By Sir JAMES DALRYMPLE of STAIR PRESIDENT of the SESSION EDINBURGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1681. To the KING May it Please Your Majesty I DO humbly present to Your MAJESTY a Summary of the Laws and Customes of Your ancient Kingdom of SCOTLAND which can be no where so fitly Placed as under the Rayes of Your Royal Protection I am confident it will tend to the Honour and Renoun of Your MAJESTY and Your Princely Progenitors that You have Governed this Nation so long and so happily by such just and convenient Laws which are here offered to the view of the World in a Plain Rational and Natural Method In which Material Justice the common Law of the World is in the first place orderly deduced from self evident Principles thorow all the several private Rights thence arising And in the next place the Expedients of the most Polite Nation for Ascertaining and Expeding the Rights and Interests of Mankind are Applyed in their proper places especially these which have been invented or followed by this Nation so that a great part of what is here offered is common to most Civil Nations and is not like to be displeasing to the Judicious and Sober any where who dote not so much upon their own Customes as to think that none else are worthy of their notice There is not much here asserted upon meer Authority or Imposed for no other Reason but quia majoribus placuerunt but the Rational Motives inductive of the several Laws and Customes are therewith held forth And though the Application of those common Rules to the varietie of Cases determined by our Statutes our ancient Customes and the more recent Decisions of our Supream Courts be peculiar to us Yet even the Quadrancy of these to the common Dictates of Reason and Justice may make them the less displeasing and that no Nation hath so few words of Art but that almost all our Terms are near the Common and Vulgar Acceptation Yea the Historical Part relating the Helps and Expedients for Clearing and Securing the Rights of Men out of the Word of GOD the Moral and Judicial Law contained therein the Civil Canon and Feudal Laws and many Customes of the Neighbouring Nations Digested as they fall in with the Common Rules of Justice may probably be acceptable to these who may and will allow time for their perusal a quaint and gliding Stile much less the Flourishes of Eloquence the ordinary Condiment and Vernish which qualifie the pains of Reading could not justly be expected in a Treatise of Law which of all Subjects doth require the most Plain and Accurate Expressions to ballance which the Nausiating burden of Citations are as much as can be left out We do not pretend to be amongst the Great and Rich Kingdoms of the Earth yet we know not who can claim preference in Antiquity and Integrity being of one Blood and Lineage without mixture of any other people and have so continued above two thousand years during all which no forreign Power was ever able to setle the Dominion of a Strange Lord over us or to make us forsake our Allegeance to Your MAJESTIEs Royal Ancestors our Native and Kindlie Kings Whereas most of the other Kingdoms are Componds of Diverse Nations and have been subjugated to Princes of different and opposite Families and oftimes Forreigners The great Monarchies which did design Universalitie are all broken in pieces and there is no Familie that can claim a just Title to Redintegrat any of them There is no Emperor nor King except Your Self but knows to what other Families their Predecessors did Succeed and when and by what means It is evident what a mixture hath been in Greece and Italy in France and Spain in ENGLAND and elsewhere This Nation hath not been obscure and unknown to the World but the most famous Nations have made use of our Arms and have still in grateful remembrance retained Trophies and Monuments of our Courage and Constancy There be few Wars in Christendome wherein we have not had considerable Bodies of Souldiers Regimented and Commanded by themselves and oftimes general Officers Commanding them and whole Armies of Strangers with great Reputation and Gallantry which did advance them above the Natives of these Countreys where they served Neither have we wanted the fame of Learning at home and abroad in the most eminent Professions Divine or Humane And as every where the most Pregnant and Active Spirits applie themselves to the Study and practice of Law so these that applyed themselves to that Profession amongst us have given great Evidence of sharp and piercing Spirits with much readiness of Conception and dexterity of Expression which are necessary Qualifications both of the Bench and Bar whereby the Law of this Kingdom hath attained to so great Perfection that it may without Arrogance be compared with the Laws of any of our neighbouring Nations for we are happy in having so few and so clear Statutes Our Law is most part Consuetudinary whereby what is found inconvenient is Obliterat and forgot Our Forms are plain and Prompt whereby the generality of the Judicious have with little pains much insight in our Law and do with the more Security enjoy their Rights and Possessions which by our publick Records are better known then any where by which we may with the greatest assurance Trust our Purchase seing no Land-Right is effectual against Purchasers by Consent or by Law but where the ultimate perfection thereof by Seasing or other Evident is upon Record in Registers set apart for the several Rights without mixture of any other whereof there are Authentick Minute-books keeped with the Records in each Shire and Jurisdiction whereby with the least pains or expence all the Rights affecting any Land within the course of Prescription can easily be found We are not Involved in the Labyrinth of many and large Statutes whereof the posterior do ordinarly Abrogate or Derogate from the prior that it requires a great part of a life to be prompt in all these Windings without which no man with sincerity and confidence can Consult or Plead much less can the Subjects by their own Industrie know where to rest but must give more implicite Faith to their Judges and Lawers then they need or ought to give to their Divines and we do always prefer the Sense to the subtility of Law and do seldom trip by niecities or formalities The greatest Fixation and Improvement of our Law hath been by the Establishment of the Supream Civil Judicature of the Kingdom by King JAMES the fifth in the Institution of the Colledge of Justice consisting of fifteen ordinarie Senators in place of the Kings daily Council which followed His Residence and Court and of the Lords of Session
and unfavourable with the exceptions against it 41 Single Value found due where the Heir was married before his Predecessor died by precipitation 42 The quantity of the single Value in Heirs Male or Female 43 Marriage is debitum fundi 44 It belongs to the eldest Superior 45 The Royal Prerogative prefers the King to all others as to the Marriage of the Vassal 46 Marriage is due by the Heirs of Apprisers 47 Exceptions against the Value of Marriage 48 The rise of Liferent Escheat 49 It extends to all kinds of Liferents 50 Liferents of Fees not having Infeftment or not owing Fidelity to a Subject belong to the King 51 Liferent Escheat of Sub vassals to whom they belong 52 Liferent-Escheat is not excluded by voluntary Infeftment after Denounciation not being for Im plement of a special Obligement to infeft before Denounciation 53 Liferent-Escheat is excluded by Apprifing for Debts anterior to the Rebellion there being Infeftments or Charge in cursu rebellionis 54 Liferent-Escheat extends not to Burgage or Mortification 55 But extends to Ministers Stipends 56 Liferent-Escheat is made effectual by Declarator TITLE XV. Annualrent where of Pensions and Poinding of the Ground 1 DEscription of Annualrent 2 The rise of Annualrent 3 The manner of constituting Annualrents 4 The kinds of Holding of Annualrents 5 Liferent-Escheat of Annualrenters 6 Kinds of Annualrents amongst the English 7 The difference of Feu-Annuals Ground-Annuals and Top-Annuals 8 Poinding of the Ground 9 The extent thereof 10 Who must be cited in Poynding of the Ground 11 The effect of poynding the Ground as to Ground Rights 12 The Order of poynding Moveables by several Annualrenters 13 Annualrents are effectual personally against Intrometters 14 Annualrents are moveable as to bygones 15 Extinction of Annualrents 16 Ecclesiastick Pensions affect the Benefice 17 Pensions by secular Persons how far effectual 18 The Kings Pensions are not arrestable TITLE XVI Liferents where of Conjunctfees Terces and Liferents by the Courtesie of Scotland 1 SErvitudes personal by the Roman Law 2 Servitudes personal by our Custom 3 Clauses of Conquest of Liferent or Fee of Lands acquired during Marriages how far extended 4 All Liferents must be salva rei substantia 5 Liferenters are burthened with Aliment of Heirs 6 Liferents without Infeftment are not effectual against singular Successors 7 The effect of Assignations to Liferents 8 Liferents are not prejudged by Tacks or other Deeds of the Feer being posterior 9 What Terms do belong to Liferenters 10 Conjunctfees 11 Liferenters by Conjunctfees have all the Casualities of Superiority 12 Terce 13 Services of Terces 14 Kenning to Terces 15 The effect of Terces 16 The extent of Terces 17 Exceptions against Terces 18 Burthens of Terces 19 Liferents by the Courtesie of Scotland 20 Publick Burthens TITLE XVII Servitudes real 1 REquisits to constitute real Servitudes by Consent 2 How Prescription constituteth Servitude 3 How far Servitudes ate effectual against the Superior 4 Extinction of Servitudes 5 Kinds of Servitudes 6 Servitudes of Support 7 Stillicides 8 Sinks 9 Servitudes of Prospect or Light 10 Wayes 11 Watering 12 Watergang 13 Feuelling 14 Pasturage 15 Thirlage 16 Several wayes of constituting Thirlage 17 Several Cases in which Thirlage is not constitute 18 The effect and extent of Thirlage 19 The import of several Clauses of Thirlage 20 Invecta illata or tholling Fire and Water 21 Sequels 22 Miln-service 23 Priviledge of Milns 24 How Thirlage becomes extinct 25 In Multure Seed and Horse Corn are to be deduced but no other expense of Labouring 26 Thirlage constitute by a Vassal not effectual against the Superior 27 Deductions for insufficiency of the Miln breaking down of the Damm or Frost TITLE XVIII Teinds where of Benefices Stipends Presentation Collation Institution Tacks Annats and Patronage 1 TEinds affect all Intrometters but not singular Successors 2 The rise of Teinds 3 The first division of 〈◊〉 4 Whether Teinds be jure divino 5 Kinds of Teinds 6 We have no personal Teinds and Vicarage is local according to the Custom of the several Places 7 What Lands are Teind-free 8 Teinds might not be Feued after the Lateran Council 9 Teinds are not annexed to the Crown 10 Teinds included 11 Surrender of Teinds to the King and his Decreet arbitral for valuing and selling thereof 12 Commission for Valuation of Teinds 13 Annuity of Teinds 14 The Rule for valuing Teinds 15 Benefices 16 Decime debentur parocho 17 Consent of the Chapter Convent or Prebend how far requisit 18 Diminution of the Rental of Benefices 19 Consent of Patrons 20 Tacks by Colledges 21 The present condition of Teinds 22 Drawn Teinds 23 Spuilzie of Teinds and Inhibitions 24 Rentalled Teind Bolls 25 The Interest of Bishops in their Benefices 26 The Interest of Ministers in Benences 27 Kirks patrimonial or 〈◊〉 28 Presentation and Collation 29 The effect of Possession as to Benefices and Stipends 30 Stipends allocat and unallocat 31 Teinds change as the Lands are in Grass Corn or other Crop 32 Teinds are not debita fundi 33 The legal Terms of Benefices and Stipends 34 The Annat 35 Patronage TITLE XIX Tacks where of Rentals tacite Relocation and Removing 1 THe nature of Tacks 2 How Tacks become as real Rights effectual against singular Successors 3 Who may grant Tacks 4 How Tacks may be ser. 5 The Tenor or Tacks 6 The effect of Obligements to set Tacks 7 Tacks become real Rights by Possession 8 Tacks in Wadsets after Redemption become valid 9 The extent and effects of Tacks 10 Tacks-men in Possession need not dispute the Setter's Right disputing as heritable Proprietar 11 The effect of Tacks whereof the Tack-Duty is payable to Creditors 12 Tacks are good active Titles for Maills and Duties 13 The effect of Tacks set to Husband and Wife 14 Kinds of Tacks 15 Rentals 16 The effect of Assignations or Subtacks of Rentals or other Tacks 17 The effect of Sub-tacks as to Tutors and Donatars 18 The effect of Rentals in Court Books or Rental Books only 19 The endurance of Rentals 20 The effect of Grassums 21 How far Rentals become void by Alienation Assignation or Subtack 22 Defect of Subtacks 23 Tacit Relocation 24 How Tacks fall in Escheat 25 Tacks sleep during Ward and Non-entry of the Setter and are valid against his Liferent-Escheat 26 Tacks are 〈◊〉 juris and extend not to Heirs or voluntary Assignys or Subtacks or Removing but when exprest except Tacks for Liferent or equivalent 27 Tacks without Ish are null 28 How far Tacks to endure till a Sum be payed are valid 29 Tacks are null without a Tack-Duty 30 Tacks are valid though not expressing the Entry 31 Tenents must labour and not wast or open the Ground for any Minerals 32 Tacks become void by two years not payment of the Tack-Duty 33 Or for not finding Caution to pay the Tack-duty bygone and in time to come 34 Or by the Tenents Renounciation 35 By contrary Consent of both Parties 36 By
Deeds contrary to the Tack 37 Or by Removing 38 Summary Removing without warning in what Cases 39 The old way of removing Tenents 40 Warning of Tenents to remove 41 The active Title in Removings 42 Exceptions against Removings not instantly verified are not receiveable till Cautiou be found for the violent Profits 43 Defenses against Removing and Replys thereto 44 Violent Profits 45 Succeeding in the vice of Tenents removed TITLE XX. Wadsetts where of Reversion Regress and Redemption 1 Infeftments for satisfaction of Sums Principal and Annual or for Relief are proper feudal Impignorations consisting with the Disponer's Property 2 The Nature of Wadsets 3 The Nature of Reversions 4 Kinds of Reversions 5 〈◊〉 requisit in Reversions 6 The effect of Clauses irritant in Reversions 7 Reversions are stricti juris 8 Kinds of Wadsets 9 Proper Wadsets 10 The effect of Tacks after Redemption contained in Reversions 11 Improper Wadsets 12 Regress 13 Discharges of Reversions 14 Wadsets become legally extinct by Declarator of explring thereof or by the Order and Declarator of Redemption 15 The Order of Redemption of Apprisings or Adjudications 16 The Order of Redemption by conventional Reversions 17 Premonition 18 Gonsignation 19 Declarators of Redemption 20 The effect of Declarators of Redemption 21 Defenses against Declarators of Redemption 22 Requisition 23 How far other Rights may be reserved in Redemptions or Renounciations TITLE XXI Extinction of Infeftments where of Resignation ad remanentiam Recognition Disclamation Purpresture and other Feudal Delinquences 1 THe form of Resignations ad remanentiam 2 They may be by Procurators or propriis manibus 3 Instruments of Resignation prove not without a Warrant in writ 4 Resignations ad remanentiam were valid without Registration till the year 1669. 5 Resignations imply all Burthens by the Vassal affecting the Fee 6 Resignation by him who hath no Right with consent of him who hath Right how far effectual 7 How far Superiors may not reject Resignations ad remanentiam 8 How Infeftments become extinct by Succession as Heir or singulari titulo 9 The original of extinction of Fees not by the Vassals consent but by his Deed. 10 Recognition by Alienation of the Ward Fee 11 Recognition by Infeftments a se. 12 Whether Recognition can be incurred by Deeds in minority or on Death-bed 13 Whether Recognition can be incurred by Sub-feudation 14 How far Feus exceeding the Half of the full Rent may subsist without Recognition 15 In what Cases other Feus of Ward lands infer not Recognition 16 Recognition by Alienation is only of Lands clearly Ward simple or taxed 17 Recognition is not incurred unless the major part be alienat 18 Recognition is not incurred by Alienations to the Vassals apparent Heir 19 Whether Recognition be incurred by Alienations on condition that the Superior consent 20 Inhibition excludes not Recognition 21 Recognition is not excluded by the Vassals drunkenness when he alienat 22 How the Superior's Consent may be adhibit to Alienations to shun Recognition 23 How far the Kings Confirmation without a novodamus takes off Recognition 24 How Recognition is taken off by homologation 25 Recognition excludes all Infeftments Tacks or Servitudes by the Vassal's Deed without the Superior's Consent or authority of Law 26 Servitudes by Prescription are not excluded by Recognition 27 In Recognitions who must be cited and who may compear 28 The Title and Order in Declarators of Recognition 29 Disclamation how incurred 30 Purpresture how incurred 31 Feudal Delinquences adduced by the Feudists for resolving Fees 32 Atrocious Deeds against Vassals Fidelity to their Superiors resolving their Fees 33 How far the Ignorance or Weakness of the Vassal excuses with other exceptions for the Vassal 34 Whether the Delinquence of the Subvassal infers Recognition TITLE XXII Prescription 1 PRescription distinguished and described 2 Usucapion 3 The several times required to Usucapion or Prescription by the Roman Law 4 Requisits to Prescription 5 Bona fides requisit to Prescription 6 Whether he who doubteth of his Author 's Right be in bona or mala fide 7 Evidences of mala fides 8 The Title requisit to Prescription 9 The Motives inductive of Prescription 10 Exception where Prescription took no place by the Civil Law 11 The common Rule of Prescription with us 12 The beginning of Prescription of personal Rights with the extensions thereof 13 Prescription of Moveables 14 Prescription is reckoned de momento in momentum per tempus continuum 15 Prescription of heritable Rights 16 Prescription is not extended against the Right of Superiority 17 Prescription runs not for Tenents against their Masters 18 Prescription runs not against Minors but there is no exception of Mortifications to pious uses 19 In our long Prescription bona fides is not required 20 The Titles requisit in Prescriptions of heritable Rights 21 This long Prescription secures Wadsets Infeftments for Security Teinds and long Tacks 22 How far Teinds can prescribe 23 This Prescription extends to Patronage and Offices 24 And to Thirlage and all Servitudes 25 This Prescription excludes all Action and ground of Reduction and Declarator if the essentials of the Title appear 26 The several ways of interruption of Prescription 27 The way of Interruption by King CHARLES the first as to special Rights of the Crown by Letters of publication 28 The annual Prescription of the priviledge of apparent Heirs intra annum deliberandi 29 The biennial prescription of the preference of Diligences of the Creditors of Defuncts to the Diligences of the Creditors of the Heir 30 Triennial Prescription of Spuilzie Ejection Intrusion and Succeeding in the Vice Merchants Compts House-maills and Removings 31 Quadrennial Prescription of the priviledge to reduce Deeds of Minors intra quadrennium utile 32 Quinquennial Prescription of Arrestments Ministers Stipends Multures Rents of Tenents removed and legal Reversion of special Adjudications 33 Septennial Prescription of old Apprisings and Summons for Interruption 34 Decennial Prescription of late Apprisings or general Adjudications 35 Prescription of twenty years of holograph Bonds Missives and Subscriptions in Compt-books without Witnesses 36 No Prescription runs in Minority except Removings House-maills and Merchant Compts PART II. TITLE XXIII Assignations Where of Arrestments and Actions for making forth-coming 1 THe several Conveyances of Rights 2 What Rights are not transmissible 3 The rise of Assignations 4 The tenor of Assignations 5 The Conveyance of blank Bonds c. 6 The rise and effect of Intimations 7 The several wayes of Intimation 8 What Assignations are perfected by Possession without other Intimation 9 Other supplies of Intimation 10 Intimations to more correi debendi 11 Intimation is not necessary to Rights registrat for publication as Reversions c. 12 Nor to Orders of Merchants 13 Nor to judicial Assignations by Apprisings c. 14 Nor to the legal Assignation Jure mariti by Marriage 15 Nor against the Cedent's Heirs or Executors even though Creditors 16 To what Rights Assignations extend 17 Assignations carry Inhibitions following on the
man yet Equity and the Natural Law in so far as it is allowed declared and made effectual by man is in so far accounted among the Laws of men The Laws of men are either common to many Nations or proper to one Nation or peculiar to some Places or Incorporations in the same Nation as were the Municipal Laws in the Roman Republick and such are still in most Nations not only in matters of lesser moment but in the highest matters of private Rights as in Succession which is diversified in many Provinces in France Germany and the Netherlands and England as may be instanced in the Gavil kind of Kent The Law common to many Nations is that which is commonly called the Law of Nations which stands in the customs owned and acknowledged by all or at least the most civil Nations which for the most part are nothing else but Equity and the Law of Nature and Reason though in part also there be positive Laws introduced by common consent of Nations and which do no less obliege these Nations as importing their obligatory consent then do the customs of particular Nations and Incorporations Such are the Laws of Captivity and Bondage of these taken in War the safety of Ambassadors though more guilty of the common quarrel than the rest of the Nations from whom they are sent yet for common utilities sake while they act in and conform to that Capacity they are safe otherways there could be no Commerce orderly Indiction of War or Pacification And therefore the Romans when they had to do with barbarous Nations who did not acknowledge this Law did send their Ambassadors to their Borders and there did require Reparation and denunce War because they could safely go no further and for the same reason though Slavery be against the Natural Law of Liberty yet it is received for conveniency by the Nations being more willing to lose Liberty than Life Such also are the Laws of Hospitality or the mutual Trust betwixt the Host and the Guest whom he hath willingly received in his House whereby neither of them can act any thing prejudicial to the Life or Liberty of the other while in that relation though otherwise they had just reason and might do the same yet the doing of it then were a violating of the Law of Nations But for the most part the Law of Nations is nothing else but Equity and the Law of Nature and Reason which standeth as the common Rule among men appointed of God by which they may know and crave each from other their Rights and in case of refusal may vindicate the same by force wherein they are still regulat by the common Law of Reason and the Customs of Nations keeping a just proportion betwixt the Wrong and Reparation though taken by force And not like Draco who made the punishment of all his Laws Death and therefore were said to be written in Bloud so by making the Issue of every Quarrel to be the Conquest of the debelled and the swallowing up of all their Rights as if they had pactioned to put them all upon the Issue of that War whereas there is nothing in question by either Party but the striving for Reparation of that Injury which the one owneth and the other denyeth to acknowledge as an Injury or refuseth Reparation thereof This Law is chiefly understood when the Common Law is named amongst us though the English so name the common Current of their Civil Law as opposite to Statute and their late Customes which is sometimes so taken with us and oft-times by the Common Law we understand the Roman Law which in some sort is common to many Nations 11. The Law of each Society of People under the same Soveraign Authority is called The Civil Law or the Law of the Citizens of that Commonwealth though that now be appropriate to the Civil Law of the Roman Common-wealth or 〈◊〉 as the most excellent And because of that Assinity that the Law of Scotland hath with it as have also the Laws and Customes of the Chief Nations to which the Victorious Arms of the Romans did propagat it and its own worth even after the ruine of the Roman Empyre which hath so commended it that though it be not acknowledged as a Law binding for its Authority yet as a Rule followed for its Equity it shall not be amiss to say something here of it The Romans were first Governed by Kings who gave them Laws which being Collected by Papirius in the time of Tarquinius Superbus were therefore called the Papirian Law Tarquinius and Monarchy being thrown out the Papirian Law Collected in his Time and Name was partaker of his Hatred and Contempt of the People and there was no fixed nor written Law among the Romans till they sent the triumviri posthumus Maulius and Sulpitius to the Greek Republick to understand the Laws of these Common-wealths and thence to frame a Model of Government and Laws for the Roman State which they did and made up the Law of the twelve Tables which being comprehended in few Words and marrowy Sentences all Written upon twelve Tables was fixed upon the most publick Mercat place at Rome that they might be easily known and keeped in mind by all the Citizens These were so acceptable and satisfactory to the Romans that they have been the Foundations and Principles of all that great Body of Law which afterwards they had all which was ordered to that Ancient Law as Extensions and Limitations of it which was done at first by parts by the Plebiscita Laws Inacted by the Suffrage of the People or by the Senatus Consulta or by the Edicts of the Pretor or by the Responses of the Jurisprudents who were authorized to give answer in dubious Cases as Cornelius Nasica Fabauf Cato Gallus Ariciusidius Manlius Scevola Crassus Iuventius Ulpianus Paulus Julianus and others and when the Soveraign Power was devolved upon the Emperour by their Edicts Rescripts and Decrees until the Roman Law increased unto so great a bulk that there were thousands of Books of Law in which the Brevity and Perspicuity of the twelve Tables was then lost as now the body of them through the injury of time has perished But at last the Emperour Justinian did by the pains of seventeen Select Jurisconsults pick out the Marrow of all the Ancient Laws and digest them into some Method into the fifty Books of the Digest or Pandects which therefore have the Authour of every Law prefixed to it he did also by Tribonian and others Collect the Rescripts Decrees and all the Edicts of the Emperours which before were more imperfectly compiled in their Theodosian Codex and which thereafter he perfeited and named the Justinian Codex as Posterior Constitutions of the Emperours were gathered together in nine Collations which were called the Novel Constitutions Justinian did also cause frame the four Books of the Institutes as the Sums and Elements of the whole Law But as nothing Humane is stable
eleided by Restitution of the Goods within fourty eight hours they being accepted and keeped by the pursuer Nic. de vi bon rapt Sym. contra Ambross but not eleided by Restitution within twenty four hours not being re integra the Spuilzied Horse his back being broken by the Spuilzier Nic. Ibid. Robert Knows contra Joseph Lermont Neither eleided by Restitution within four or five days before which the pursuit was intented and here the Spuilziers Brother had taken away the Goods shortly after Restitution January 12. 1610. contra Forrester 24. There is also a common exception against Spuilzies upon prescription of three years they not being pursued within that space after the committing thereof and that by express Statute Par. 1579. cap. 51. But this prescription is only against the Spuilzie as such so that it taketh away the Priviledge thereof as to the violent profits juramentum in litem yet may it thereafter be pursued as wrongous intromission for Restitution only and if many be pursued they are not lyable in solidum but equally unless a greater Intromission of some of them be proven January 17. 1668. Captain Strachen contra George Morison which also is competent in many Cases where Spuilzie is either not sustainable or eleidable in its Atrocity as a Spuilzie nam levis exceptioexcusat a spolio and yet action for Restitution remains And sometimes the Spuilzie may be restricted thereto if the Pursuer please before 〈◊〉 so to do or otherways he hath therefore a several action as if Spuilzie be pursued and an exception of lawful Poynding admitted to be proven the Defender will be assoilzied from the Spuilzie even though the Decreet whereupon the Poynding proceeded be reduced for informality and yet he will have a several action for Restitution which may be also decerned in the Action of Spuilzie But Spuilzie is not eleided by Masters of the Ground their bringing back the Goods of their Tennants by vertue of their Hypotheck ex intervallo February 9. 1676. Park contra Cockburn of Roslin Neither was the Spuilzie of a Horse eleided because he was found in the skaith and was offered back within fourty eight hours upon payment of the skaith unless he had been put in a Poind-fold or safe place having Water Grass or Fodder And that by the Sentence of a Judge the skaith had been estimate and the Horse Poynded therefore February 10. 1676. Duncan contra Kids December 2. 1679. Mr. John Beaton contra Home So spuilzie was not eleided upon alledging the Pursuer had Spuilzied or recept as much of the Defenders Goods by the Act 112. Par. 7. Act 16. Par. 10. King James 6. unless the Pursuer had been a broken man and notorious Thief of a Clan who could not be reached by the ordinary course of Law July 23. 1678. James Baird contra Parochioners of Fivie 25. Intrusion and Ejection are Delinquences in Lands and Immoveables as Spuilzie is in Moveables and they differ in this that Intrusion is the enter ing in Possession being for the time void without consent of the Parties Interressed or Order of Law But Ejection as its Etymon intimats is not only the unwarrantable entring in Lands but the casting out violently of the then Possessor In this there is violence in the other wrong but no violence in the entry though it be a violent detention And in either case the Injured must be at least repute in Possession But as the Possession must begin by some bodily Act it may be continued alone by the Act of the Mind willing or affecting the Possession which is conjectured or presumed from Circumstances for if it be but a short time since the Possessour did corporally possess and nothing appear that he hath relinquished his Possession or his Affection thereto ceased then he is still Possessor and is so presumed because of his interest but if his abstinence be total or long that he hath retained nothing as Keys or keeping of Doors closs then the Possession is holden as 〈◊〉 And he who enters by a real or colourable Title is no Intruder and cannot be Extruded but by Warning and Process of 〈◊〉 and therefore though Intrusion be said to be in the void Possession it is only meaned as to corporal Possession there being still a presumed possession animo on the part of the injured In other things Intrusion and Ejection do in all things agree Ejection must be pursued within three years Pa. 1579. cap. 81. which is extended to Intrusion by these words of the Statute That Eject and others of that Nature be pursued within three years after committing thereof February 2. 1610. 〈◊〉 of Craighall contra 26. Ejection is only competent to the natural Possessors Possessing by themselves their Hinds and Cottars but not to an Heretor for Ejection of his Tennants unless the Tennants concur November 26. 1626. 〈◊〉 〈◊〉 contra Bruce Hope Ejection Margaret Cunninghame contra Peter 〈◊〉 Hence it is that Intrusion or Ejection is not committed but by entering in natural Possession or at least by out-putting or in-putting of Tennants For though Possessours invert their Masters Possession and pay their Rents to another this will not infer against them Intrusion or Ejection But in both these cases there are other remeids in Law by removing or action for Mails and Duties which is competent against Intrometters though Ejection and Intrusion prescrive by this Statute yet it is only as such for taking away of its singular Priviledges viz. the violent profits for though they be not pursued within three years yet they are competent being libelled and restricted to Restitution of Possession and for the ordinary profits and in this they differ from Removing which cannot be pursued but upon Warning fourty days preceeding Whitsonday But these may be pursued at any time without Warning March 16. 1627. Walter Hay contra Mark Ker. Spots Ejection James Mowat contra James Davidson July 15. 1626. Mcphedrick contra 〈◊〉 Yet where the pursuers Title was only an Assignation to a years Tack though he restricted the Ejection to the Possession and the ordinary profits the same was not sustained in respect the years Tack was long before expired and was only sustained for Damnage and Interest in not possessing his years Tack during the time and for the profits thereof during that year December 17. 1631. Lord Lowdoun contra Laird of Capringtoun Ejection and Intrusion are founded especialy upon Possession and the Pursuer needs not dispute his Right neither his Entering in Possession which though it were Vitious yet if it be continued by a considerable space and the 〈◊〉 being then ejected he will not be excluded by alledging his entry was vitious as if he had entered in the vice of a Tennent removed by the Defender Yea after the death of the Person Ejected the Action was sustained at the instance of his appearand Heir upon condition he Infeft himself before Extracting Nicol de haeredibus Blair contra Mathie As also Ejection
by a liquidation of consent or by a Decreet which was sustained though the Decreet was after the Charge December 23. 1635. Keith contra Glenkindie Yea a Decreet of liquidation against a Principal was found sufficient to infer Compensation against the Cautioner or his Assigney though not called to the Decreet it being without collusion June 24. 1665. Irwing contra Strachen And Compensation was sustained against an Assigney upon a debt due by the Cedent though liquidat after the Assignation in respect the Assignation was gratuitous January 18. 1676. Corbet contra Ramsay But the Compensation ought not further to be drawn back then the liquidation and so Ferms being liquidat will stop the course of Annualrent from the time of the liquidation but not from the time the Ferms were due unless it were Money Rent but Ferms or Services only from the liquidation December 4. 1675. Walstoun contra Robert Cunninghame Compensation is relevant not only upon a Debt of the Creditors own but if he be Creditor by Assignation the Debt is compensible by a liquid Debt due by the Cedent before he was denuded by Assignation and Intimation because the Compensation was effectual ipso jure from the concourse of the two liquid Debts inter easdem partes February 14. 1633. Keith contra Heriot March 16. 1639. Coupland contra Forsyth Compensation is also relevant upon a Debt Assigned to the Compenser by our common Consuetude albeit the Debitor pursued or charged do seek out and acquire a Debt of the Chargers even after the Charge which is a further Benefit introduced by Custom though it hath this inconveniency that a Creditor can hardly recover any Debt if he be due Debt to others himself but if an Assigney Charge for a Debt the Debitor will not have Compensation upon a Debt of the Cedents Assigned to him after the Intimation of the Chargers Assignation for these two Debts never concurred inter easdem partes for though the Debitor may always compense the Assigney upon the Cedents Debt before the Assignation if it was originally due to the Debitor himself but after the Cedent is denuded by Intimation the Debitor cannot acquire a Debt of the Cedents due to another therewith to exclude the Assigney unless the Debitor Compenser was Creditor to the Cedent ab initio or became Creditor to him by an Assignation to the Creditors Debt Intimat to him before he was denuded in favours of an other Assigney otherwise the Debts do never concur betwixt the same Debitor and Creditor January 22. 1663. James Wallace contra Edger July 4. 1676. John 〈◊〉 contra Alexander Brownlie But Heirs and Executors are accompted eadem persona cum defuncto and therefore Compensation may be both upon and against their Debts So Compensation was admitted against an Heir or Executor upon Debt due by the Defunct to the Defenders Father whom he represented Spots hic Cassmire Pyet contra Russetter And Compensation was admitted against an Executor upon a Legacy left to the Defender though there was no sentence thereupon Spots Executors Williamson contra Tweedies It was also admitted for an Executor upon a Debt due by the pursuer to the Defunct though the Executor had not Confirmed that Debt but he behoved to cik the same December 7. 1609. Aikman contra Lady Brughtoun But Compensation is not competent to a Creditor of a Defunct taking Assignation to one of the Defuncts Debts after his death which is upon accompt of the Priviledge of the Creditors who have access to the Defuncts Estate according to their diligence And therefore the Executor cannot prefer one to another much less can a debitor of the Defunct by taking Assignation to the Defunct Debts prefer that Creditor to the rest of the Creditors of the Defunct February 8. 1662. Thomas Crawford contra the Earl of Murray February 14. 1662. Children of Mouswall contra Loury of Maxwelstoun Compensation was found competent against a Donatar upon a debt of the Rebels before the Rebellion for which the Compenser was Cautioner though he payed after February 3. 1635. Innes contra Lesly January 23. 1669. Mr. James Drummond contra Stirling of Airdoch Compensation is competent against Factors Procurators or Commissioners upon their Constituents liquid debt but not upon their own debt for they are not Creditors as to their Constituents sums Yea a Factor being charged by his Constituent for his Intromission with his Rents was not admitted to compense the same with a debt due by his Constituent whereunto the Factor took Assignation Neither was the Chamberlain accompted a debitor to his Constituent as by a liquid debt but that his Constituents Rents were in the Property of his Master and in the Factors custody as a Servant November 9. 1672. Pearson contra Sir Robert Murray alias Crightoun Compensation takes no place in the Provinces of France which acknowledge not the Roman Law but a 〈◊〉 Law without a priviledge from the King as is observed by Gregorius Tholesanus upon Compensation And it seems not to have been competent by the Law of Scotland before the 〈◊〉 of Parl. 1592. cap. 141. Whereby it is Statute That any debt de liquido in liquidum verified by Write or oath of party before giving of Decreet be admitted by all Judges within the Realm by way of Exception but not after the giving thereof in the Suspension or in the Reduction of the same Decreet So that if the charge or pursuit be instantly verified by Write the defender will not get a Term to prove Compensation but if a Term be assigned to the pursuer the same would be assigned to the defender to instruct any debt wherewith he would compense by Write or Oath yea by Witnesses if the Probation be closed as soon as the pursuers Probation for the Statute bears Compensation to be in liquid debts instantly verified before the Decreet although it mention not Probation by Witnesses it doth not exclude the same but it excludes Compensation after the Decreet either by Suspension or Reduction which seems to import more then the rejection of Compensation because it was competent and omitted which hath been always a common objection against any reason of Suspension or Reduction but that Compensation should not be admitted after Decreet though the Decreet were in absence unless it were Reduced upon Improbation of the Executions or other nullity or by purging the contumacy in not compearing and that taking Assignation to debts of the Cedents after Decreet should not found a Compensation as being against the letter of the Statute for though it seem an emergent reason which would be sufficient against competent and omitted yet not against the speciality of this Statute excluding all Compensation after Decreet but this Statute is to be understood only of Decreets proceeding upon Citation and not Decreets of Registration which are summar and of consent by the clause of Registration and therefore Compensation was not sustained against a Sheriffs Decreetsthough in absence July 25. 1676. William
Liferent Escheat the whole by forefaulture All Rights relating to Infeftment by Destination are Heretable or moveable in the same manner as betwixt Heirs and Executors But Rights having a tract of time but not for a Liferent are Moveable and fall under single Escheat yet the bygones of Annualrent by Infeftment are still moveable But as to both effects Assignations to Literent Tacks were found moveable and to fall under single escheat Hope Horning Sir Robert Ker contra Sir John Ker. Clauses also of relief in Heretable Bondsare moveable and the jus Marti of Husbands though they carry the profit of the Wises Heretable Rights or Rights of Liferent fall under the Husbands single escheat 3. To return now to the several kinds of real Rights The First whereof is that original Community which all men had at first in the whole Creatures of this inferior World For as to that Community which is competent to a Nation Incorporation Society or more single Persons it is property indeed to these in respect of other Men though amongst themselves it keepeth a proportion with the universal Community First In that there is an equal right and interest presumed to be in all these that have Community unless the contrair appear Secondly That this Equality is not exact in the use but that which is enjoyed in common may freely be made use of for the ends of the Community though some make use of more and others of less according to their need or satisfaction As when two persons have an universal society of all their means if the one be taler then the other he is not to go naked in so far as he exceeds his fellow Or if his appetit be greater he is not to pinch it and if he have more Children he may entertain and provide them and thereby consume more of the common Stock then the other so that in these universal Societies there is not an Arithmetical equality but a Geometrical proportion to the need and use of the parties to be observed Thirdly Such Communities may be past from and division being made of that which is common thereby it will become proper to either party unless the nature of the thing or paction hinder in which case division cannot be made without consent of the whole for as is showen before under the Obediential Obligations of Restitution to every man that which is his own divisions of that which is common is comprehended Fourthly Even during the Community that which any party taketh for his use is proper and may not be taken from him by any other if he exceed not the ends or the interest of the Society by seeking more then is proportional to his need and use with the rest in the Society All these agree to the original Community of Mankind and so they did continue in the first and golden Age of the World when Gold was not known nor regarded but simplicity and sincerity were the Gold of that Age whereby every man contented himself with the natural Fruits and Birth of the Earth Sea and Rivers And it is like that the Fruits of the Ground and Trees were satisfying to man at first before they came to hunting and killing of Beasts fishing in the Seas and Rivers and Haulking and killing of Fowls 5. Then also men were contented with Caves of the Earth or shades of Trees for Houses and skins of Beasts for Cloathing in this Community do many of the Savage Nations of America continue to this day in these vast and unpeopled places of the World But for the most part man being multiplied upon the face of the Earth there was necessity of division and appropriation which hath so far prevailed that now there remains nothing common which by its nature and mans necessity can be appropriat whereby some things in whole and some uses of others remain yet common to all men as 6. First The Air is common to all men because it can have no limits or bounds and because all men every where must necessarily breath it Secondly Running Waters are common to all men because they can have no bounds but Water standing and capable of bounds is proper Thirdly The vast Ocean is common to all mankind as to Navigation and Fishing which are the only uses thereof because it is not capable of bounds but where the Sea is inclosed in Bays Creeks or otherways is capable of any bounds or meeths as within the points of such Lands or within the view of such Shoars there it may become proper but with the reservation of passage for Commerce as in the Land Fourthly All the wild and free creatures which are in the property of none are in some sort common to all as Fishes Fowls Bees c. But in respect property hath taken hold of all that is appropriable these are said rather to belong to none as being by common consent declared void by all that property thereof may be inferred by occupation and possession without respect to the persons necessity or use as was in the ancient Community but that simply whosoever possesseth that which belongeth to none doth thereby acquire the property thereof Such also are Gemms and precious Stones on the Shoar or things relinquished by the proper owners except where there is a National Community that people or their authority do possess in common not only some reserved rights of the Earth but also the rights of precious things or things relinquished or lost by Shipwrack or otherways whereby the imaginary possession of having such within their Territories is sufficient by the custome of Nations to appropriat them and to exclude other Nations or single persons of that same Nation from them So with us Treasures hid in the Earth whose proper owners cannot be known are not his in whose Ground they are found nor the finders but belong to the King And things stray or waith whose owners cannot appear are publick And ship-wrack which is only understood when all living things in the Ship have perished but where an Ox escaped out of the Ship to Land alive the Goods were not found escheatable as Shipwrack November 22. 1622. Hamiltoun contra Cochran But shipwrack is not to be made use of by the King in prejudice of the owners of such Countreys as use not that Law themselves but they shall have the same favour here as they keep to Ships of this Land broken with them Par. 1429. cap. 124. Fifthly Of things appropriat there remains still the common use of Ways and Passages which is like a servitude on property for this is necessarly required for the use of man and therefore understood as an use reserved both in their tacit consent to appropriation and in their custom So all Nations have free passage by Navigation through the Ocean Bays and Navigable Rivers and have also the benefite of Stations in the Sea or Rivers and have the common use of the Shoars for casting Anchors disloading of Goods taking in of Ballast or
in arbitrio judicis whether to grant a conjunct probation before answer to the relevancy of the reasons of Adjudication or to discuss the relevancy first and then to admit the points found relevant to probation but in the other way witnesses are adduced for either party yet this being only ex nobili officio the Lords remitted the Cause to the Admiral and ordained him to proceed to discuss the relevancy there being pregnant grounds of Adjudication instantly verified June 12. 1673. and upon his refusal they did Advocat the Cause to themselves they did also ordain the Admiral to proceed upon the evidences adduced to adjudge or assoilzie without allowing a conjunct probation before answer and declared that if he proceeded not accordingly they would Advocat the Cause albeit the Danish Treaty bear that their Ships shall not be medled with or their Goods disloaded till they be adjudged in a Court of Admirality for the Lords are the Kings great Court of Admirality in the same way as his Commissioners in England are Judges in the second instance of Pryzes brought before the Admiral of England December 17. 1673. Captain Stuart contra the owners of the Danish Ship called the Seal Fish When Questions concerning Prizes come before the Lords they do not exclude the Defences of strangers as being competent and omitted in the first instance though that be a Rule by our custom but do proceed according to the common Law of Nations and so they decided July 23. 1667. Hans Jurgan contra Captain Logan which was the first case occurring in that question and was always followed after The rule by which the Lords have always proceeded in the matter of Pryzes hath been the Law and Custom of Nations and therefore the Tenor of the Admirals Commission was not found to be the rule February 21. 1668. Bartholomew Parkman contra Captain Allan The treaties betwixt the King and his Allies in so far as they differ from the common Law of Nations have always been allowed by the Lords as exceptions from that general Rule and good Defences to the people comprehended in these Treaties In dubious cases the Lords have proceeded by the Kings Instructions ordinarly adhibit to the Admiralities of all his Kingdoms that they might keep one uniform rule with strangers in which not only respect hath been had unto Justice but even favour towards Allies and policy and prudence towards all Newters that none of them might receive irritation by the extension of Justice in savourable case 〈◊〉 The ground of Justice for confiscating the Ships of those who are not enemies is that they have assisted the enemy in carrying on the War and thereby became accessories to the War and by that Delinquence do confiscat the Ships and the loading by which they have had accession for the Law and Custom of Nations hath very fitly restricted the reparation of this Delinquence so as not to state the parties offenders as enemies and thereby to make all their goods confiscable as enemies goods but doth limit the same to these Ships in which the concurse is acted ifthey be seazed in that Voyage in which they give assistance or in the immediat return Ingagement in War by Princes and States cannot justly hinder the free Trade of other people upon whom neither party hath either Obligation or Jurisdiction but the common consent and Custom of Nations requireth an equality and newtrality in all other parties that they concur not in the War with either party forbearing assistance in the War which is by furnishing them men instruments of War materials specially requisit for the present War Money furnished for publick use and in some cases Victual as when carried to places besieged and other things which have promiscuous use in Peace and War when there is a special application there of to the necessar use of the War as Iron Brass Leid Pitch Tar and the like which are therefore called counterband-goods or prohibit-goods and by the Denunciations of War intimation is ordinarly made to Newters from what things to abstain as from carrying of counterband-goods towards enemies Ports or carrying the goods and ware of enemies whereby their Trade is promoted and they enabled to maintain the War or by carrying on their Trade under the colour of the Trade of Neuters and therefore in time of War Neuters do instruct their Vessels with Passes and other Documents instructing that the bottom and goods belong to their subjects free-men and that the parties ingaged in the War or any of their subjects have no interest therein which Passes are upon the oaths of the owners of the Ship or Masters thereof and those who embarque the loading and where there is any Treaty the formula of such Passes useth to be exprest always including an oath and being given by such Magistrates as are agreed upon First Then seing the accession of Neuters is a Delinquence it can have no place where there is not a publick denunced War which were presumed to be known to the Delinquent and therefore the Ship and Goods belonging to Neuters were not found Prize because carrying counterband-goods towards the enemies Ports unless the War had been nottourly known at the place where they loosed at the time when they loosed and acts of hostility and declaring of Prizes in neighbouring places was not found sufficient July 22. 1667. Hans Jurgan contra Captain Logan The like was found of a Ship of Hamburg carrying counterband-goods to Danish Ports after acts of hostility betwixt the King and the Danes because the Ship was taken before the Proclamation of the War against the Danes February 25. 1668. Merchants of Hamburg contra Captain Dishingtoun If Ships have in them counterband-goods they may be brought up if the Port be not exprest upon oath and be a free Port or be contradicted by the oaths of the Skipper and Company which infers a full probation in case they acknowledge an unfree Port and a presumptive probation in case the Pass bear not a free Port yet it admits a contrary probation for proving of the true Port January 21. 1673. Hendrick Anderson Master of the Sun of Dantzick contra Captain Dowglas The like was found where the Pass made the Port uncertain and ambiguous bearing London to be the Port but a greater fraught promised if the Ship was brought up into Holland which was found to be elided by a positive contrair probation February 19. 1673. the owners of the Palm-tree and Patience contra Captain Atchison Amongst counterband Pitch and Tar were found comprehended July 9. 1668. Captain Allan contra Bartholomew Parkman Timber propper for Shipping as Masts c. is unquestionably counterband but Timber of promiscuous use is not counterband except in special cases for the peculiar use of the War There is a particular Article in the first Treaty betwixt the King and the Swedes by which it is declared that in regard the most of the materials of the Swedish Trade are Pitch Tar 〈◊〉 c.
the abolishing of Popery they return to the Crown as the Narrative of the Act of annexation of the temporality of Benefices Par. 1587. cap. 29. bears and therefore Benefices of Laick Patronage as having proceeded from these Patrons are excepted by the said Act and though after the restitution of Bishops and their Chapters the Act of Annexation in so far as concerned their Lands was rescinded Par. 1606. cap. 6. Yet Bishops being abolished Par. 1640. cap. 6. their Lands were again annexed to the Crown Par. 1649. cap. whereby all Erection of Kirk-lands in temporal Barronies or Lordships by which the King interposeth any person betwixt himself and these who were formerly Vassals of Kirkmen are prohibit and declared null this Act is rescinded in the general Act rescissory 1661. cap. 15. The annexed property after Dissolution may not be granted in ward or blensh except upon Excambion for as good Lands Par. 1597. cap. 234. 37. Feus of Kirk lands by Prelats or other beneficed persons being granted by consent of their Chapters with all requisite Solemnities were esteemed Legal Securities without any particular Confirmation by the King or Pope there being no Statute nor Constitution obliging the Subjects thereto and in case any Confirmation had been requisite the consent of the Prince under his proper Seal and Subscription was sufficient Par. 1593. cap. 187. Yet it was the Custome that the Kings or Popes Authority was interposed to all Feus of Kirk-lands therefore all Feus not Confirmed by the King or Pope before the 8. of March 1558. or being thereafter not Confirmed by the King are declared null by Exception Par. 1584. cap. 7. The Reason hereof was because in March 1558. the Reformation of Religion began to be publickly professed in Scotland and the beneficed persons became hopeless to preserve their rights of their Kirk Lands and therefore endeavoured to dilapidat the same But this was found not to extend to an Infeftment of an Office as the Office of Forrestrie though it had Lands annexed thereto and a threave of Corn out of every Husband Land of the Abbacy seing the Statute mentioned only Feus of Lands And this was but like a Thirlage 20. of Ianuary 1666. Lord Renton contra Feuers of 〈◊〉 It is also declared in the 7. Act Par. 1594. that the old Possessors were to have their Confirmation for payment of the quadruple of their silver rent or the double of their ferm Providing they sought the same within a Year after the publication of that Act otherwayes they were to pay the eight fold of the Silver rent and the triple of the Ferm and the King was thereby obliged to grant Confirmation to the old Possessors upon these terms and being so Confirmed the same could not be questioned upon aleadged Dimunition of the Rental or Conversion in monie or any other cause of Nullity Invalidity or Lesion or by any Law Canon or Statute except Improbation only And it was declared that Confirmations by the King of Posterior Feus should not perjudge the Anterior Feus granted by Prelates and their Convents with their common Seals and Subscriptions at any time being granted with consent of the Kings Predecessors under their Privy Seal though without farder Confirmation by the Kings or Popes Par. 1593. cap. 187. The Reason hereof was because in the time of the Reformation most of the Evidents of Kirk Lands were destroyed And therefore the Ancient Possessors were presumed by their very Possessions to have Right And for clearing who were the Ancient Possessors and what were Kirk Lands it is declared by Act of Sederunt 16. of December 1612. that ten years Possossion before the Reformation or thirty years Possession thereafter but interruption should be sufficient to stand for a Right of Kirk-lands the same being possest as such and Feu dutie being payed to Kirkmen before the Reformation or to the King or others having Right from them after the Reformation therefore it was so decided 5. of July 1626. Laird of Kerse contra Minister of Alva though much stronger probation of being part of a temporal Barronie for longer time was alledged in the contrary Hope Earl of Home contra Earl of Balcleugh Spots Kirkmen Mr. John Hamiltone Minister at Linton contra John Tweedie Secondly Feus granted by Prelats were null Except they were expede by the consent of their Chapters or Convents Par. 1593. cap. 187. Thirdly Feus granted by the beneficed Persons as of themselves they ought to have been without diminution of the Rental seeing the Property thereof was mortified to the Kirk and the incumbents were but as Liferenters Administrators and Tutors it was also expresly declared and statute that any diminution of the Rental or change of Victual for Money or any other Disposition making the Benefice in a worse Estate then at the Kirk-mens entrie should be null Par. 1585. cap. 11. 38. Infeftments in Burgages are these which are granted to the Burghs by the King as the common Lands or other rights of the Incorporation and that for Burgal Service in Watching and Warding within their Burghs c. These can have no Casualities because Incorporations die not and so their Land can never fall in Ward or in Non-entrie These Infeftments in Burgage are held by the Incorporation immediately of the King for Burgal service Watching and Warding within Burgh c. And the particular persons Infeft are the Kings immediate Vassals and the Bailies of the Burgh are the Kings Bailies And to the effect that such Infeftments may be known it is declared that all Seasines of Burgage Lands shall only be given by the Bailzie and common Clerk thereof otherwayes the famine is declared null which seems to have given the rise to the exception in the Act of Parliament anent Registration of Seasins that it should not extend to Seasins within Burgh Par. 1567. cap. 27. 39. Infeftments of mortisied Lands are these which are granted to the Kirk or other Incorporation having no other Reddendo then Prayers and Supplications and the like Such were the Mortifications of the Kirk-lands granted by the King to Kirk-men or granted by other privat men to the Provost and Prebendars of Colledge Kirks founded for Singing Or to Chaplains Preceptors or Alterages in which the Patronage remained in the Mortifiers 40. Of all these Mortifications there remains nothing now except the Benefices of Bishops Deans and Chapters and the Manses and Gleibs of Ministers which are rather Allodial then Feudal having no holding Reddendo or Renovatione Yet are esteemed as holden of the King in Mortification And therefore the Liferent of the Incumbent by being year and day at the Horn falls to the King Manses and Gleibs did belong to Parsons Viccars and other Kirk-men before the Reformation after which they were prohibited to set the same Feu or in long Tack without the Royall assent and the Ministers were ordained to have the principall Manse of the Parson or Viccar or so much thereof as should be found sufficient Whither
all such Fortalices than in other things This consequence is not good for that which infers Treason is the holding out of the House and denying access to the King by armed Force which will be treasonable in any House whether it have Battlements or Turrets or not but cannot infer that all Houses with Battlements or Turrets were built for publick defence and did once belong to the King which recent Custom doth further clear there being nothing more ordinary then to build Houses with Turrets or Rounds upon the Angles without Warrand Quarrel or Suspition these being rather for Ornament then for Strength 67. Forrests are likewise inter Regalia being places destinat for Deer for the Kings use and pleasure in Hunting which cannot be extended generally to Woods but only to such where Deer have been keeped for certainly Woods are partes fundi privati and are not inter Regalia in any Nation but Forrests for keeping of Deer remain inteir Regalia altho the Wood should fail And wherever Deer are keeped as proper and others debarred from Hunting there it is presumed to have been a Forrest proper to the King And though the Lands being in Baronia may carry the Priviledge and Office of Forrestry which gives the Baron right to hunt kill and make use of the Deer Yet he will be but held as Keeper or Forrester which will not exclude the King to hunt and kill the Deer for his own proper use for the property of the Forrest will never be understood if it be not very expresly granted Forrests have great Priviledges and peculiar Customs for whereas no man is oblieged to herd his Cattel off other mens ground or Corns or to be answerable for the Skaith they do longer then in hayning time while the Corns are upon the Ground And if any man have a minde to keep his neighbours goods off his Ground he may do it But he must herd his Ground and may turn off his neighbours Goods without wronging them but cannot put them in Pondfold Yet if any mans Goods be found in Forrests they become escheat and are confiscat two thirds to the King and one third to the Forrester And if any Baron or Landed-man have hained Woods or Forrests of their own they may escheat all Goods that bees found therein to their own use Par. 1535. cap. 12. Where privat Forrests of Subjects are only understood such as are inclosed with a sufficient Dyke The words of the Statute bears Hained Woods or Forrests which cannot be hained without inclosure but the Kings Forrests are large tracts of Ground which neither have been nor can be inclosed and therefore all the neighbouring Heretors and Possessors must either herd their Goods off these Forrests or loss them Upon this account it was that the King having by a Signature under his hand grantend a Forrestry to the Laird of Fascally the Exchequer before passing thereof desired the Lords of Session to consider and report what by Law was the Priviledge Conveniency or Inconveniency of Forrests and they having heard the Obtainer of the Forrest and the neighbouring Heretors did declare the Priviledge of a Forrest to be as aforesaid June 21. 1680. Whereupon the Exchequer did represent to the King the Inconveniency to grant new Forrests The Comptroller had the Inspection of the Kings Parks and Forrests and it was lawful to the Comptroller or any having the Kings Warand to intromet with all Goods in the Kings Forrest not put in by the Comptroler or these having power from him and to apply the whole to the Kings use Par. 1592. cap. 198. And by the former Statute the Forrester or Keeper is prohibite to put any Cattel in the Forrest belonging to himself So that if the Keeper first seize upon Goods in the Forrest he hath the third but if the Comptroller or these having Warrand from the King does 〈◊〉 seize the Keeper hath no share There are many more Customes and Priviledges of the Kings Forrests and Chaces in England where the Forrester or Keeper hath only the Branches of Trees and the Bark thereof and such as are fallen or decayed and as Skeen observes that he may take a Tree as high as his head but our heretable Keepers have much more Priviledge and may make use of the Wood and Deer so as not to destroy either and with a reservation for the Kings proper use 68 The hunting or killing of Deer seems to be inter Regalia with us except these who have them within proper inclosures for otherways the Kings Forrest having no inclosure the Dear by straying abroad would easily be destroyed and therefore though every man may hunt them off his Ground by which they will be forced back to some Forrest yet they may not kill them 69. Salmond Fishing is also inter regalia and therefore passeth not ordinarly as pertinent and ought to be exprest in the Infeftment yet in some cases Salmond-fishing hath been found constitute without special expression but only by the common Clause cum piscationibus and long Possession June 29. 1593. Lesly of Creik contra Forbes of Thainstoun in which case it was found that Salmond-fishing is only inter regalia as it is a Casuality fluminis publici such as are Navigable Rivers wherein there is a common use of Passage and Transportation in like manner where Lands are Erected in a Barrony or any other dignity Salmond-fishing may be carryed by the the common clause cum piscationibus as when it bears Fishing in salt and fresh water though without mention of Salmond-fishing Hope Fshing Laird of Glenurchy contra Alexander Cambel So an Infeftment to a Burgh-royal bearing cum piscationibus piscariis with immemorial Possession was found to give them right to Salmond-fishing and Cruives though none of them were exprest January 26. 1665. Heretors of Don contra the Town of Aberdene January 13. 1681. Brown of Nuntoun contra the Town of Kirkcudbright It was also found constitute by the Infeftment of a Sheriffship and fourty years Possession though the Infeftments bore only Emoluments in general December 13. 1677. Earl of Murray contra the Feuers upon the Water of Ness Marquess of Huntly and Town of Inverness It was also found Constitute by a Bishops Charter of Londs cum piscariis bearing a reeddendo of Salmond though th Bishops right from the King was not produced but presumed and being a Dignity prefected by long Possession of his Vassal January 13. 1680. Brown of Nuntoun contra the Town of Kirkcudbright And likewise long Possession by the space of fourty years was found to give right to a Salmond-fishing upon both sides of the Water and drawing the same upon both sides though the Infeftment bore but fishing upon one side Hope fishing Lady Monymusk contra Forbes of Barns A Clause cum piscationibus was found to be a Title for Prescription in Baronia and that fourty years uninterrupted possession constitutes the right of Salmond-fishing February 7. 1672. Fullurtoun contra Earl of Eglintoun It is more dubious
rights doth take off from him the Ward if the right be Feu only generally without mention of the Ward seing the Act 1606. doth only annul Feues set by Vassals holding Ward of Subjects without their Superiours consent which was so found albeit the Feu was under reversion that it was free of the Ward and Marriage of the Vassal as to the subvassal feuer but did only affect the Vassals interest viz. the Feu duty reversion and back-tack July 2. 1672. Earl of Eglintoun contra the Laird Greenock Ward is also restrained by the Terce and Liferent of Husbands by the Courtesie of Scotland both which are introduced by Law and are valid without the Superiours consent But Rentals and Tacks set by the Vassal have only this effect against the Superiour or his Donatar that the Tennents or Labourers shall not be removed till the next Whitsonday after the beginning of the Ward paying the old accustomed Duty Par. 1491. cap. 26. But then the Superiour or his Donatar may remove them notwithstanding their Tacks be unexpired which therefore sleep during the Ward but revive against the setter and his Heirs and endure as many years after the Ward as they were excluded by the Ward Sinclar May 21. 1549. Laird of Durie contra Robert Steuart Ledingtoun December 16. 1569. Kings Donatar contra Tennents of Drorgan July 4. 1611. Laird of Couter contra Where also the Terce was found relevant to exclude the Superiour yet Ward is not excluded by Annualrents holden of the Vassal March 11. 1629. James Weyms contra Kincraig But now since the Act of Parliament 1606. Prohibiting Feues without consent of the Superiour these did not exclude the Ward or other Casualities of the Superiority as to Fees not holden of the King which was even extended to the Fees holden of the Prince Hope Ward Lady Cathcart contra Vassals of Cathcart And after the Act of Parliament 1633. extending the foresaid Act to Ward-lands holden of the King and Prince Feues then granted till the year 1641. when the effect of that Act being before suspended by Act of Parliament 1640. was taken away And so Feues of Lands holden of the King or Prince were valid till the rescissory Act 1661. whereby the said Parliament 1641. was rescinded Par. 1661. cap. 15. So that now Feues of Lands holden of the King Prince or any other Superiour without their consent do not exclude it or other Casualities of the Superiority except such Feues as were granted the several times they were allowed by Law but a Charter upon an Apprizing did exclude the Ward though no Infeftment was taken thereupon during the Vassals life as Hope observes Title Ward Hamiltoun contra Tenents of Newburgh because the Superiours Charter without Seasine did import a Gift of the Casualities which might befall to the Superiour and he there observes that a Ward was excluded by Appryzing and Infeftment thereupon whereby the Defunct was denuded albeit it was to the behove of his Heir Laird of Ley contra Laird of Barro During the Legal the Superiour or Donatar as before the Infeftment upon the Apprysing they might pay the Appryzer and take his right So after they may redeem him and exclude him it being against reason that by Appryzing suppose of a great Tenement for a small debt the Superiour should be simply excluded and it may be upon design if an Appryzer Possess his Ward falls and not the former Vassals though the Legal be not expired but after the Ward is fallen though the Superiour received an Appryzer Appryzing from the Heir without Protestation yet it was found not to prejudge the Ward by the death of the former Vassal July 9. 1664. Hospital of Glasgow contra Robert Campbel But a Superiour was not excluded from the Ward by his Vassalt death because an Appryzer had charged him to Enter him during that vassals life seing that Charge could not make the Apprizer vassal by whose death Ward would fall and thereby make the Superiour lose this Casuality by the death of both the old Vassal and the appryzer unless the Superiour had been in mora aut culpa which was not found unless a years rent of the Land or Annualrent of the Money And a Charter were offered with a Bond to pay what further the Lords should modifie February 19. 1669. Black contra David Trinch If an Appryzing be satisfied or extinct by Intromission the Ward-lands appryzed become in the Superiours hands by Ward till the Majority of the heir July 20. 1671. Lindsay of Mount contra Maxwel of Kirkonel In which case the Appryzer was not found oblieged to restrict to his Annualrent to the effect that the Donatar of Ward might have the superplus by the Act of Parl 1661. cap. 62. betwixt Debitor and Creditor whereby there is a power given to the Lords of Session to cause Appryzers restrict to their Annualrent which is only personal in favours of the debitor if he demand it The benefite of Ward is also burdened with the Mentainance and Sustentation of the Heir by vertue of the foresaid Act 1491. cap. 25 whereby a reasonable Sustentation according to the quantity of the Heritage is appointed to the Heir if he have not Lands Blensh or Feu to sustain him and that by the Superiour and his Donatar and Conjunctfiars and Liferenters of his Estate the quantity whereof is to be modified by the Lords according to the quality of the Heir and so found not only when the Heir had no means but though he had if it was not sufficient to entertain him the superplus was modified out of the Ward-lands and Lands Liferented proportionably March 16. 1622. Heirs of Miltoun contra Calderwood We shall say no more of the Aliment of Heirs by Ward Superiours or their Donatars in this place but you may see it in its proper place Title 27. Section third Thus it appeareth in what way the Casuality of Ward is excluded burdened or restricted being always by Law or by the consent and deed of the Superiour but no private deed of the Vassal without the Superiours consent or appointment of Law can burden the Fee when it is in the hands of the Superiour by Ward c. So that Servitudes introduced by the Vassal as Thirlage ways and the like are not effectual against the Superiour or his Donatar when the Fee is in their hands Unless such Servitudes be introduced by Prescription of fourty years or immemorial Possession whereunto all parties having interest their consent is presumed and therefore in that case there is more ground for sustaining of the Servitude even against the Superiour who might at least have used civil interruption Marches set by the Vassal of consent or by Cognition whereto the Superiour is not called hath no effect in his prejudice during the Ward Feb. 8. 1662. Lord Torphichen contra As to the personal debts of the Vassal whether Heretable or moveable they do not affect the Fee though in Ward albeit Craig Dieges 20. relateth that of
Bruce contra James Bruce This annualrent was not for security of a Stock The like was found of a Liferent Annualrent June 18. 1663. Margaret Fleming contra James Gillis 14. Annualrents as to bygones are moveable and so arrestable and belong to Executors December 15. 1630. Ogilvie contra Ogilvie Yet it will be more competent and suitable to pursue it personally against intrometters with the Rents or Postessors then by a real Action of poinding the ground Annualrents are supprest by Wodset of the Land or other more noble Right in the person of the Annualrenter unless that Right were evicted 15. An Infeftment of Annualrent redeemable was found extinct by a Renunciation registrat in the Register of Reversions and that against a singular Successor though there was no resignation of the Annualrent January 7. 1680. John Mcclellan contra Mushet An annualrent was also found extinct by the annualrenters intrometting with the Rents of the Lands out of which the Annualrent was payable equivalent to the principal Sum for security whereof the annualrent was constitute which intromission was sound probable by witnesses though it was silver-rent Feb. 4. 1671. Wishart contra Elizabeth Arthur And therefore singnlar Successors succeeding in annualrents either by voluntary Disposition or by Apprising or Adjudication cannot be secure by inspection of Registers as they may be for Lands but they run the hazard of satisfaction of the principal Sum for which the Annualrent is granted wherewith it falls in consequence For no provident man will buy an annualrent given for security of a principal Sum but either upon necessity for satisfying a prior debt or upon great advantage in both which cases he should take his hazard Scire debet cum quo contrahit as all Purchasers of personal Rights must do Pensions resemble Annualrents or the seuda ex camera or ex cavena mentioned by the Feudists for thereby a yearly Rent is constitute to be payed out of the Constituents Lands generally or particularly Yet these Pensions not having Infeftment have but the nature of Assignations and so are not valid against singular Successors 16. Except only Ecclesiastick Pensions constitute by Prelates which are valid against their Successors in Office but not unless they be cloathed with Possession or Decreets conform in the Constituents life Par. 1592. cap. 137. And so a Pension granted by a Bishop with power to assign was found valid to the Assigney after the first Pensioners death against the succeeding Bishop and to be no dilapidation July 21. 1625. Minister of Kirklistoun contra Patrick Whitelaw yea though the Pension bore a power to assign etiam in articulo mortis December 17. 1628. Chalmers contra Craigievar But in this case the Pensioner granting Assignation reserving his own Life-rent or to take effect after his death whereby both might at once have interest therein the Assignation was found null by exception though having Decreet conform and thirty years possession The like Hope Assignation Abernethie contra Lady Drumlanerk But now by the Act of Par. 1606. cap. 3. Archbishops and Bishops are disabled to grant Pensions to affect their Benefices further then themselves have right to the Benefice but do not prejudge their Successors in Office Yet Pensions granted by beneficed persons are not only due during their life but out of their annat after their death February 28. 1628. Bairns of the Bishop of Galloway contra Andrew Couper 17. Pensions granted by secular persons though they contain Assignations to the duties of the Lands specially and have Decreet conform were found ineffectual against singular Successors in the Land July 9. 1629. Urquhart contra the Earl of Caithness December 11. 1662. Andrew Clappertoun contra Laird of Ednem neither against the Lady Tercer of the Constituent March 27. 1634. Countess of Dumfermling contra Earl of Dumsermling A Decreet conform being obtained against the granter of a Pension his Tenants and Chamberlains is effectual against subsequent Chamberlains without new Decreet or Transference yet must be transferred against the Constituents Heir and his Chamberlain though it would be valid being an Ecclesiastick Pension against his Successor December 7. 1630. Earl of Carrict contra Duke of Lennox Spots hic Alexander Weyms contra Chamberlain of the Duke of Lennox A Pension bearing for love and special service done and to be done was found effectual though the Pensioner removed and did not that service his removal being necessary by transportation March 25. 1629. Doctor Strang contra Lord Couper The like of a Pension granted to an Advocat for services done and to be done which was found valid during his life though he left Pleading December 3. 1662. Mr. John Alexander contra Mr. Roderick Mcleod The like of a Pension for service done and to be done though the service was not done when not required nor was it excluded by the Pensioners pursuing Processes at his own instance against the Constituent upon a probable ground though the Constituent was assoiled June 26. 1678. Mr. William Weir Advocat contra the Earl of Callendar 18. Pensions granted by the King are declared not arrestable in the Thesaurers hands by Act of Sederunt June 11. 1613. The reason thereof must be because such are ordinarly alimentary and alwayes for the Kings special service which would be impeded by hindering payment of the Pension TITLE XVI LIFERENTS Where of Conjunctfees Terces and Liferents by the Courtesie of Scotland 1. Servitudes personal by the Roman Law 2. Servitudes personal by our Custom 3. Clauses of Conquest of Liferent or fee of Lands acquired during marriages how far extended 4. All Liferents must be salva rei substantia 5. Liferenters are burdened with aliment of Heirs 6. Liferents without Infeftment are not effectual against singular successors 7. The effect of Assignations to Liferents 8. Liferents are not prejudged by Tacks or other deeds of the Fiar being posterior 9. What Terms do belong to Liferenters 10. Conjunctsees 11. Liferenters by Conjunctsee have all the Casualities of Superiority 12. Terce 13. Services of Terces 14. Kenning to Terces 15. The effect of Terces 16. The extent of Terces 17. Exceptions against Terces 18. Burdens of Terces 19. Liferents by the courtesie of Scotland 20. Publick burdens FROM the Feudal Rights of Property we proceed to Servitudes burdening the 〈◊〉 these are either personal or real Personal Servitudes are whereby the property of one is subservient to the person of another Real Servitude is whereby a Tenement is subservient to another Tenement and to persons But as and while they have Right to the Tenement Dominant as Thirleage Pasturage Ways Passages c. and the like Servitudes personal for term of Life are therefore called Liferents Servitudes for an indefinite time are such which either may or uses to be Constitute for a longer or shorter time such are Pensions Ecclesiastick Rentals and Tacks which though they be in their nature but personal Rights Yet by Statute or Custom they have the effect of real Rights of which
The Viccarage Teinds is local according to the custom of every Benefice or Paroch and therefore was suftained for the Viccarage of Salt and so much out of each Loom but not upon thirteen years Possession but only upon prescription by fourty years Possession November 29. 1678. Mr. John Birnie contra Earl of Nethâ—sdaâ—â— and his Tennents Yea in the same Paroch there was found diversity of the Viccarage some places having no Viccarage of Cows and other places paying Viccarage of Milk and Wool for Sheep and other places paying Viccarage of Hay Goose and Grice July 7. 1677. Parson of Prestounhaugh contra his Parochioners And Viccarage was not found due out of Yards which were a part of the Chanrions Portions unless it were proven that they had been in use of payment of Viccarage before 7. Some Lands also by long custom are Teind-free as Temple-lands being out of use of payment of Teinds for fifty years were found free for all time thereafter Hope Teinds Earl of Wigtoun contra Lady Torwood Gleibs and Manses are also Teind-free And the Teinds of Lands belonging to the Cystertian Order Hospitlers and Templers were Teind-free and so continue in their Feuars though the priviledge was only as to what these Orders laboured themselves yet the Teind was found to belong to their many Feuars for what the Feuars themselves labour July 15. 1664. Thomas Crawford contra Laird of Prestoungrange 8. Teinds were prohibite to be set in Feu to Lay-men by the Lateran Council held by Pope Innocent the second or any way to be alienate from the Church Though Church-lands might be set Feu these being accounted but the Temporality and the Teinds the Spirituality as flowing from a Spiritual ground or Divine Right 9. Teinds are also acknowledged with us to be the Patrimony of the Kirk Par. 1567. cap. 10. and they are not annexed to the Crown as the temporality of Benefices are Par. 1587. cap. 29. 10. Yet decimae inclusae are here excepted for these are Feued with the Stock and can be only such as time out of mind have gone along with the Stock and never have been drawn nor separate and therefore are so ordinarly exprest decimae inclusae nunquam antea separatae and therefore such are presumed to have been Feued out with the Stock before the Lateran Council and so consistent with the Canons But if it can be proven that once they were separate by Church-men though they had right both to Stock and Teind and were Feued with Teinds included they are not valide decimae inclusae which no Church-man could Feu after the said Council Neither can the King constitute Feus de novo cum decimis inclusis so that these Teinds included are estimate as no Teinds long custom being fufficient to make Lands Teind-free and therefore they have never come in with Teinds or Benefices in any burden affecting Teinds by Law as Ministers Stipends c. 11. About the time of Abolition of Popery in Scotland the Popish Clergie did grant more frequently long Tacks of their Teinds the King also gave Donatives of Teinds and erected them with Church-lands into Barronies and Lordships so that there remained little of them no way able to entertain the Ministers and much Contraversie was like to arise about them till all parties having interest submitted and surrendered the same to the King First By the general surrender of Erections and Teinds Secondly By a particular surrender of some Beneficed persons Thirdly Of the Bishops Fourthly Of the Burrows The King upon the 2. of September 1629. Ordered the whole matter to this effect that the whole Teinds should be consolidat with the Stock being always affected with competent Stipends to Ministers c. And that therefore the Titular or the Tacks-man of the Teinds having perpetual or hereditable Right should sell the same to the Heretors at nine years puchase and where the Right was temporary or defective the price thereof should be made less accordingly 12. And for that effect a Commission was granted for valuation of Teinds and for disponing thereof as aforesaid and for modifying and localling Stipendsto the Ministers His Majesty reserved to Himself only a yearly Annuity of ten shilling Scots out of each Boll of Wheat and Barley eight shilling of Pease and Rie six shilling of Oats where the Boll rendered a Boll of Meal and proportionally less where it rendered less these Decreets were Ratified and prosecuted by several Acts of Parliament 1633. cap. 8 15 17 19. And 1641. cap. 30. Par. 1647. cap. 32. Par. 1649. cap. 46. Par. 1661. cap. 61. there was an exception in the Act 1633. cap. 19 which ordained the Teinds of all Abbacies and other Benefices except the Teinds pertaining to Bishopriks and other Benefices which fell not under the submission in which there is a Clause that the saids Bishops and Beneficed persons should enjoy the Fruits and Rents of their several Benefices as they were possessed by them the time of the said Submission and therefore where they did draw the Teinds by the space of fifteen years before the year 1628. or at least seven years of the saids fifteen years or had the same in rentalled Bolls they should so continue and not be valued which provision is repeated Par. 1662. cap. 9. all this proved for the most part ineffectual for compelling Titulars and Tacksmen of Teinds to sell their interest in other mens Teinds to the proper Heretors because these Commissioners allowing them an option to allocat whom they pleased for the payment of the Ministers Stipend few ventured to pursue them for Vendition least they might be excluded be allocation which they were willing to avert by giving the dearest Rates but if the Stipend had been laid proportionally upon all the Kings favour had been more effectual and equal but buying of Teinds being thereby retarded the great work of these Commissioners was to value modifie and allocat Stipends when the Tack-duties of the Tacksmen were not found sufficient to make up theStipend the Commission did increass the Tack-duties upon the tacks-men and in recompense thereof prorogat their Tacks whereby they though at first being but slender Rights by many nineteen years Prorogations became little less then Heretable Rights 13. The Annuities of Teinds not being annexed to the Crown were disponed by King Charles the first to James Livingstoun a Groom of His Bed-chamber to be uplifted by him till he was satisfied of the sum of Which Right was purchased by the Earl of Lowdoun and did receive many stops and took litle effect till the Kings return who gave a Commission to the late Earl of Lowdoun to transact for the bygone Annuities and to Dispone them with the full Right thereof in all time coming and his Disposition with consent of two Members of Exchequer was declared sufficient Rights to the buyers and were appointed to be Recorded in the Books of Exchequer that the sums gotten therefore might be known and imputed unto the sum
away the real right of Wodset so the Money came to be in the Property of the Wodsetter as moveable and fell to his Executor which till a Declarator was not so seing the Order might be passed from December 19. 1629. 〈◊〉 contra Miller where it was found that the Consignatar was oblieged to re-deliver the Consigned Money to the Consigner his Heirs or Assigneys passing from the Order though the Wodsetter to whose use it was Consigned was not called The like was found that till Declarator the congned sums remain in the Property of the Consigner and belong not to the Executor of the Wodsetter but to his heir or where Declarator of Redemption was after the Wodsetters death January 21. 1673. Thomas Nicol contra Lourie Iune 18. 1675. Laird of Lie contra Forbes of Blacktoun Upon Declarator of redemption Letters will be obtained summarly against the Consignatar to re-produce the Consigned Money December 7 1631. 1631. Grierson contra Gordoun But though the Instrument of Consignation will instruct the Consignation against the Wodsetter yet it will not prove against the Consignatar without his oath or write subscribed by his own hand Ianuary 14. 1630. Lausree contra Miller 21. Redemption was not elided by a singular Successor obtaining Infeftment of the Wodset Landsafter the Order or at least the Infeftment being base not cled with Possession till after the Order though it was cled with seven years Possession before Declarator Hope Confirmation Earl of Errol contra Tennents and Lady Seaforth 22. Wodsets are also taken off by Premonition or requisition requiring the sums upon which the Wodset is granted which makes the sums moveable and the Infeftment of Wodset void yet so that the requirer may pass from his requisition and the Infeftment revives January 29. 1635. James Hamiltoun contra Tennents of Calder The Requisition may be also past from indireclty by uplifting the Duties of the Wodset Lands for Terms after the requisition Hope Usury Thomas Waliace contra Laird of Edzel or taking posterior Terms of Annualrent from Principal or Cautioner Requisition requires also the same solemnities that Premonition requires and therefore it was not sustained where the Procurator designed no time nor place to pay the Money required and the Instrument was mended at the Bar as to the reading of the Procuratory and the truth of it referred to the defenders oath which the Lords admitted not the Instrument being otherways produced in Judgement this was in expyring of a Reversion for not payment upon requisition The like when the requisition bore that February 7. 1628. Maxwel contra Laird of Innerweek The like where the requisition mentioned not the production or the Procuratory though it bore not it to be called November 13. 1622. Laird of Bass contra Wauchop This was in a requisition only to validat a Charge the contrary was found where it bore that the Procurators power was known to him and the witness Ianuary 18. 1665. Stuart contra Stuart Here there was an Apprising deduced upon the requisition The like where the Procuratory was not called for and was in the Procurators hand June 28. 1671. Hellen Home contra Lord Justice Clerk 23. Declarators of redemption or renunciations or grants of redemption do ordinarly bear that the Wodsetter renunceth all right to the Wodset Lands and albeit he have a distinct right it will not stop the Declarator nor obliege the redeemer to debate thereanent in that Proces Nor will it stop the entering the redeemer in the Possession in which he entered by the Wodset but that right will only be reserved November 22. 1677. Sir Archibald Stuart of Castlemilk contra Duke of Hamiltoun And if the Wodsetter condescend upon and give evidence of any other right beside the Wodset it will be particularly reserved or the renunciation will only bear all right by vertue of the Wodset Hope Confirmation Baikie contra Iuly 2. 1623. Earl of Errol contra Bukie And in the case of redemption of an Appryzing the renunciation was restricted to the right in question February 22. 1631. Murray contra Lord Yester Declarators of redemption do descern the Wodsetter to renunce and resign all right to the Wodset Lands unless a right distinct from the Wodset could be instructed which will be excepted or an evidence given of such a right which thereupon will be reserved But a general reservation of other rights was not sustained but a Declarator of redemption was found a species of Declarator of right after which no right competent and omitted will be sustained which was then known February 2. 1676. Duke of Lauderdail contra Lord and Lady Yester TITLE XXI Extinction of Infeftments Where of Resignation ad remanentiam Recognition Disclamation Purpresture and other Feudal Delinquences 1. The form of Resignations ad remanentiam 2. They may be by Procurators or propriis manibus 3. Instruments of Resignation prove not without a warrand in write 4. Resignations ad remanentiam were valide without Registration till the year 1669. 5. Resignations imply all burdens by the Vassal affecting the fee. 6. Resignation by him who hath no right with consent of him who hath right how far effectual 7. How far Superiours may not reject resignations ad remanentiam 8. How Infeftments become extinct by Succession as heir or Singulari titulo 9. The original of extinction of fees not by the Vassalls consent but by his deed 10. Recognition by alienation of the ward fee. 11. Recognition by Infeftments a se. 12. Whether recognition can be incurred by deeds in minority or on death-bed 13. Whether recognition can be incurred by Sub-feudation 14. How far feues exceeding the half of the full rent may subsist without recognition 15. In what cases other feues of ward-lands infer not recognition 16. Recognition by alienation is only of Lands clearly ward simple or taxed 17. Recognition is not incurred unless the major part be alienate 18. Recognition is not incurred by alienations to the Vassals appearand heir 19. Whether recognition be incurred by alienations on condition that the Superiour consent 20. Inhibition excludes not recognition 21. Recognition is not excluded by the Vassals drunkeness when he alienat 22. How the Superiours consent may be adhibite to alienations to shun recognition 23. How far the Kings Confirmation without a novodamus takes off recognition 24. How recognition is taken off by homologation 25. Recognition excludes all Infeftments Tacks or Servitudes by the Vassals deed without the Superiours consent or authority of Law 26. Servitudes by prescription are not excluded by recognition 27. In recognitions who must be cited and who may compear 28. The Title and Order in declarator of recognition 29. Disclamation how incurred 30. Purpresture how incurred 31. Feudal Delinquences adduced by the Feudists for resolving fees 32. Attrocious deeds against Vassals fidelity to their Superiours resolving their fees 33. How far the ignorance or weakness of the Vassal excuses with other exception for the Vassal 34. Whether the delinquence of the Sub-vassal
immediat Vassal but by all subaltern Vassals and would not only be competent to the King upon deeds of treason committed against him by his sub-vassals but by all deeds of attrocity done against another Superiour by his sub-vassals as if his sub-vassal should kill wound or betray his Superiour So that the question behoved to return whether there were any feudal Contract or Obligation of fidelity betwixt the Superiour and his Sub-vassals for if that were then Vassals might fall in Recognition by such deeds not only against their immediat Superiours but against all their mediat Superiours though never so many For though the case in question be most odious and unfavourable being rebellion yet it hath its proper punishment introduced by Law and Statute whereby the rebel loseth Life Land and Goods to the King to whom all his Subjects owes fidelity as Subjects though all do not owe the feudal Fidelity as Vassals yet if Recognition take place as to the King it must likewise fall to all other Superiours whatever way the Land be held Ward Feu Blensh or Mortification if they have not a confirmation or consent of the Superiour anterior to the deeds inferring Recognition We shall not therefore anticipat the publick determination of the question if custom hath determined it what will take place for all feudal Rights are local but there hath not yet appeared any case by which a Donatar by his Gift and Presentation being infeft in the Fee of the Kings sub-vassal forefault has excluded these who had real Rights from the forefaulted person before the treasonable fact though much hath been disputed upon the Act of Par. 9. cap. 2. concerning the quinquennial possession of forfaulted persons especially from the last clause thereof bearing that no person presented by the King to feu Lands forefaulted nor any Vassal of any Feuer forefaulted shall be compelled to produce their Acquittances of their Feu-mail or Annualrents of their forefaulted Lands of any year preceeding the forefaulture which doth clearly acknowledge that when the Feuers right is forefaulted his Sub-vassals right is not forefauted yet it was alledged that would not end the controversie by the Act 72. Par. 1457. because these rights of the Sub-vassals of the forefaulted Feuer might have been confirmed by the King specially or generally by the foresaid Act 1457. But the general Confirmation from that Act can have no effect because the the sub-vassals whose Rights are preserved by the Act are not Feues granted by Ward-holders but are subaltern Infeftments granted by forefaulted Feuers And without question the King hath given no consent to any to grant Feues but to Ward-holders only for though the Law hinders them to grant sub-feues or Annualrents yet there being no consent or confirmation by the King thereto Therefore if the King his immediat Vassal be forefaulted all the ancient Feues granted by him of the Lands holden Ward will stand valid as being consented to by the King by the foresaid Statute But the Feues granted by him of Lands holden Blensh or Feu will fall in consequence with his own Feu or Blensh and cannot defend against forefaulture more then Annualrents or lucrative Tacks granted by him which Law doth allow and yet fall with his right unless consented to or confirmed by the Superiour TITLE XXII Prescription 1. Prescription distinguished and described 2. Usucapion 3. The several times required to Usucapion or Prescription by the Roman Law 4. Requisites to Prescription 5. Bona fides requisite to Prescription 6. Whether he who doubteth of his authors Right be in bona or mala fide 7. Evidences of mala fides 8. The Title requisite to Prescription 9. The motives inductive of Prescription 10. Exception where Prescription took no place by the Civil Law 11. The common rule of Prescription with us 12. The beginning of Prescription of personal Rights with the extensions thereof 13. Prescription of Moveables 14. Prescription is reckoned de momento in momentum per tempus continuum 15. Prescription of Heretable Rights 16. Prescription is not extended against the right of Superiority 17. Prescription runs not for Tennents against their Masters 18. Prescription runs not against Minors but there is no exceptions of Mortifications to pious uses 19. In our long Prescription bona Fides is not required 20. The Titles requisite in Prescriptions of Heretable Rights 21. This long Prescription secures Wodsets Infeftments for Security Teinds and long Tacks 22. How far Teinds can prescribe 23. This Prescription extends to Patronage and Offices 24. And to Thirleage and all Servitudes 25. This Prescription excludes all Action and Ground of Reduction and Declarator if the Essentials of the Title appear 26. The several wayes of Interruption of Prescription 27. The way of Interruption by King CHARLES the first as to special rights of the Crown by Letters of Publication 28. The annual prescription of the priviledge of appearand Heirs intra annum deliberandi 29. The biennial prescription of the preference of diligences of the Creditors of Defuncts to the diligences of the Creditors of the Heir 30. Triennial prescription of Spuilzie Ejection Intrusion and succeeding in the vice Merchants-counts House-mails and Removings 31. Quadrennial prescription of the priviledge to reduce deeds of Minors intra quadrennium utile 32. Quinquennial prescription of Arrestments Ministers Stipends Multures Rents of Tennents removed and legal reversion of special Adjudications 33. Septennial prescription of old Apprisings and Summonds for Interruption 34. Decennial prescription of late Apprisings or general Adjudications 35. Prescription of twenty years of Holograph Bonds Missives and Subscriptions in Count-books without Witnesses 36. No prescription runs in Minority except Removings House-mails and Merchants-counts 1. PRESCRIPTION is the common extinction and abolishing of all Rights and therefore is reserved here to the last place the name and nature whereof we have from the Civil Law wherein Prescription is sometimes largely taken for any exception but hath been appropriat to the most common exception in all cases whereby all Actions and Causes are excluded by course of time and so Prescription had no further effect then to maintain the possessor in possession by exception but not to recover possession being lost and could not constitute the right of Property 2. In this Prescription did chiefly differ from Usucapion by the ancient Roman Law that Usucapion did constitute Property and therefore is defined by Modestinus l. 3. ff de Usucapione Adjectio vel acquisitio dominii per continuationem possessionis temporis lege definiti To which description the name doth agree for usu-capere est capere ex usu aut possessione to take or acquire by use or possession But every possession was not sufficient unless it were a possession as Proprietar or for the possessors own use only So detention of any thing in the name and for the use of another and for the possessor only in security as a Pledge or Wodset cannot Constitute property 3. As to the time appointed for Usucapion
trust reposed in him and the like hope of his Issue Patrene sequitur sua proles It was at first so simplie done that the entering of the Vassall in Possession in 〈◊〉 of his Peers was a sufficient Constitution of his Right and the Investiture signified then not so much the Act constituting as the Write evidencing the Fee in the which case from the nature of the right it is consequent first that none should succeed in the Fee but such as were fit for the Militarie Services and so Women and their Issue were utterlie excluded and all the Males Succeeded equally 2. In Proper Fees none could Succeed but the Lawful Issue of the first Vassall whose Person and Issue was specially chosen among which first the Male Issue of the Vassall who dyed last infeft according to their nearness do succeed with the right of Representation and so not per capita but per 〈◊〉 next unto the Descendents among the Collateralls Brothers and their Male Issue and among these the Brothers German and their Issue exclude the Brothers by one blood and after Brothers Father Brothers and their Male Issue And so other Agnats of the last deceased being alwayes of the Male Issue of the first Vassall which being extinct the Fee ceaseth and returneth to the Superior not as the Vassalls but by vertue of that Directum Dominium which still remained in the Superior In this course of Feudall Succession there could be no place to the Vassalls Father or other Ascendents because if the Fee were a new Fee or Conquest by the Son his Father nor his Brethren could not Succeed as not being of the Issue of the first Vassall and if it were an old Fee not purchased by the Son but whereunto he did succeed it doth necessarly presuppose the Death of the Father and other Ascendents to whom the Son could not be Heir nor succeed till they were Dead But when by the course of time Fees declined from the proper nature of Ancient Fees and the Investiture did express the Tenor and speciall nature thereof the Tenor of the Investiture became the first rule of Succession in such Fees and came in place of the Testament or Will of the Defunct for seing the Vassall could not alter the Succession without consent of the Superior he could not effectually Test thereupon 21. In the next place what is not the Express Will of the Vassall and Superior by the Tenor of the Investiture is regulate by their Conjectured Will from the nature of the Fee and Propinquity of Blood So if the Fee be Originally granted to a Woman her Issue 〈◊〉 succeed as well as the Male or if the Reddendo be not Militarie Service but Money Grain or Services competent to a Woman or Manual Services wherein there is no choise of Persons as Tilling c. And so generallie Fees holden Blench or Feu In all these Woman may Succeed because they are not excluded by the Nature of the Service 2. If the Fee be Granted to Heirs whatsomever not only doth the Issue of the first Vassall but all other his Lawfull Heirs or the Lawfull Heirs of the last Deceassing Vassall whether of the Issue of the first Vassall or not do succeed And now Fees being ordinarily acquired by Sale Excambion or the like Onerous Title Feuda ad instar 〈◊〉 sunt reducta Heirs whatsomever are commonly exprest and if they were not they would be understood for that which is Ordinar is Presumed 22. But now Custome hath altered the Course of Feudall Succession and given the Prerogative of Primogeniture to the eldest Male of the nearest Degree to the Defunct Vassall who excludes not only the Females of that Degree but the Males also and their Issue not only among us but in England France and most other Nations and therefore before we descend to our own Customes it will be fit to consider the Justice and Expediency of this common Custome in Feudall Succession The Lawfulness of Primogeniture will be easily evinced from what hath been said already upon Succession wherein the will of the Proprietar is the Rule even in Equity and though he be Naturally oblidged to provide for his own that Personal Obligation reatcheth him but not the Inheritance nor doth it Oblidge him to make these to Succeed but to give them Competent Provisions and therefore the Judicial Law which is the Positive Law of God evidenceth sufficiently the Lawfulness and in some Cases the Expediency of altering the Natural Course of Succession and therefore not only the Male Issue is thereby preferred to the Female All the Females are utterly excluded but only Daughters that the Inheritance may remain within the Tribe and the Preference of Males is because Femoles are less fitted for Management of Lands and therefore are to have a Portion which the Judiciall Law calleth the Dowry of Virgins The Expediency of Primogeniture is partly Publick and partly Private The Publick Expediency is that the Estate of Great Familyes remaining intire and undivided They with their Vassals and followers may be able to defend their Country especially against Sudden invasions for with us in France Polland and many other Places the Great Families are the Bullwarks of their Countrey Having 〈◊〉 to Maintain them selves and their Followers for some time without Standing Armies Constant Pay and Subsidies The Private Expediency is for the Preservation of the Memorie and Dignitie of Families which by frequent Division of the Inheritance would become despicable or forgotten Primogeniture taketh Place in Germanie and France in proper Fees like unto Our Ward-holdings but not in Allodialls and Lands holden Freely or for Cane or Rent Gudelinus de Jure novissimo lib. 2 cap. 13. relateth that in many of the German and French Provinces the Male gets two third parts and the Females one in the other Provinces the Children of the first Marriage succeed in all the Lands the Parents had during that Marriage and so in order the Children of after Marriages And in other Provinces and Cities the Youngest Son Succeedeth in all Excluding the rest and Generally Bastards are not admitted even to the Succession of their Mothers and in England though Primogeniture have the Prerogative by the Common Law yet it hath an Exception of the Custom of Kent where Primogeniture hath no Prerogative And therefore that Custom is called the Gaball kind of Kent which is as much as to give to all the kind The Customs of England and Germany are contrary in this That in Germany Parents come in the next place after Descendents and exclude Brothers and Sisters and all other Collateralls but in England Parents do never Succeed so if the Defunct have no Issue Brothers nor Sisters nor their Issue the Fathers Brother Succeeds and excluds the Father though his Relation be by the Father and much further distant then the Father And it sometimes falls out that the Uncle Succeeding dying without Issue the Father Succeeds his Brother and so Accidentally and