receive him 12. Terce is the third of the Tenements in which the Husband died infeft as of Fee provided to his Wife surviving by Law or Custom though there be no provision or paction for that purpose The original hereof as hath been shown before amongst the interest of Marriage is from that obligation upon the Husband to provide for his Wife which therefore positive Law hath determined to a third of his Moveables if there be Children in the Family and if there be none to a half but in either case she hath a third of his Tenements And though as Craig observeth by our ancient custom Terce extended only to a third of the Tenements a Husband had the time of the Marriage yet since it extends to a third of those he stands infeft in as of fee the time of his death and so when he is denuded before his death the Terce is excluded Yea a base Infeftment without possession granted by a Husband to his Creditor was found to exclude his Wife from a Terce of that Land January 27. 1669. Bell of Belford contra Lady Rutherford This provision of Law is more equitable and proportionable then ordinarly are their provision by Contract of the Husband who being carried with affection doth oft-times provide his Wife to the prejudice of their Children and ruine of their Estate which this Terce keepeth alwayes proportionable and maketh the Wife sharer of the Industry and Fortune of the man and therefore more careful over it and upon the contrary giving out but small Provisions to their Wives at their Marriage when oft-times they do but begin to have Estates which they increase not according to the increase of their Fortune but the Law doth more fitly order the Wifes Provision to be increased or decreased according to the condition of the man 13. The Terce taketh place ordinarly where the Husband died infeft as of Fee and it hath no effect till the Widow take Brieves out of the Chancelery directed to Sheriffs or Bailies to call an Inquest of fifteen sworn men and thereby to serve the Brieve which hath two Heads the one That the bearer was lawful wife to the defunct the other that he died in fee of such Tenemnts This is a pleadable Brieve and hath no retour but Service alone is sufficient enough to give the Wife interest that other Liferenters have It was specially statute That where the Marriage was not questioned in the Husbands life and the Widow was holden and repute his lawful Wife in his Time no exception in the contrary shall be sustained in the service of the Brieve but she shall be served and injoy the Terce till it be declared in a petitory judgement That she was not lawful Wife Par. 1503. cap. 77. 14. The Brieve being thus served the Sheriff or Bailiff must also if it be demanded ken the Relict to her Terce which is ordinarly done by the Sun or the Shade That is whether the division shall begin at the east or the west and so the division of the Tenements proceed by Aikers two befalling to the Heir and one to the Relict wherein there ought to be Marches set and Instruments taken thereupon which is as a Seasine but this division being most inconvenient except the whole interest were used to be set in Aikerdale it is not exclusive of other divisions by the worth of the Lands or the Rent so many Rooms being designed for the Tercer the rest remaining for the Fiar This way of kenning would be valid and much better but it is not necessary to divide at serving the Brieve to constitute the Terce for the Service giveth sufficient Title to the third of the Mails and Duties of every Room March 5. 1632. Relick of Veatch of Dawick contra 15. But that thereby she cannot remove possessors is because she brooketh the Terce pro indiviso with the Heir till it be be kenned or otherwayes divided and the Terce being served gives right not only to the years thereafter but preceeding since the Husbands death November 20. 1624. Tennants contra Crawford and Flemming and so the Tercer may pursue the Heretor or other intromettor for all by-gones of the third of the Duty not as they were at the Husbands death but as they were bettered by the fiar Feb. 13. 1628. Countess of Dumfermling contra Earl of Dumfermling and that without deduction of Factor-fee March 27. 1634. inter eosdem The Tercer being served hath interest to pursue for Commission to cognosce pasturage Lands what Soums they may hold that she may have the third Soum or else to divide January 18. 1628. contra Mackenzie The division of the Terce from the two thirds may be in the most convenient way wherein all Dwelling-houses or Kilns and Barns and other Houses for service will come in as they may be most conveniently divided This is the most ordinary way of Terces by Service as said is when the Husband died infeft in Fee 16. Terce takes place not only in Lands but also in Annualrents wherein the Husband died infeft as of Fee Novemb. 30. 1627. Tennants of Easthouses contra Hepburn but not to the Terce of Annualrents of Bands whereupon no Infeftment followed June 24. 1663. Elizabeth Scrimzeour contra Murrays It is also extended to Infeftments of Teinds Feb. 13. 1628. Countess of Dumfermling contra Earl of Dumfermling But it is not extended to Tenements or Lands within Burgh or holden Burgage neither to Superiority or Feu-duties or other Casualities thereof nor to Tacks ibidem neither to Patronage or Advocation of Kirks neither doth Terce extend to Reversions If the Fiar whose Land is lyable to a Terce die and his Wife have right to another Terce which is called the lesser Terce though the Husband died infeft as of Fee of the whole Tenement she hath not a third of the whole but a third of these two thirds which were unaffected with the greater Terce till the former Tercers death Craig lib. 2. dieges 22. proposeth two cases in which the Relict will have a Terce though the Husband died not infeft as of Fee The first is if the Husband infeft his appearand Heir in his Estate if there be no Liferent provided to his wife by a Contract in that case the Relict will have a Terce which is most just albeit it will not proceed summarly by a Brieve which bears only warrand for a Terce of the Tenements in which the Husband died infeft as of Fee But it may proceed by Reduction or Declarator and would not only have effect against the appearand Heir but against any gratuitous Disposition reserving the Husbands own Liferent for such deeds would be found fraudulent and contrary to the nature of the obligation of Husbands to provide their Wives unless there remained Tenements out of which a reasonable Terce might remain to the Relict according to her quality The other case is when a Father by his Sons Contract of Marriage is oblieged to infeft his Son
the Superiour by which the Vassal can be accessory to no attrocious Deed against the Life and Blood of the Superiour but against any Infamy may befal him or any great detriment in his Estate and so will reach to Deeds of hurt or disgrace to his Wife or Children by Adultery Fornication or attrocious Violence upon their persons or attempts thereunto and may also extend to the revealing of the Superiours secrets or not Defending him against his Enemies or such as attack him or deserting of him in that case and in case of a necessary flight by overpouring in not crying for help and relief and in lawful War in not concurring with him or deserting him while with any probability of prevailing he stood in fight if the Vassal were then near him but it will not import his concourse active in private quarrels by force of Arms which are not warrantable 33. In all cases the ignorance of the Vassal not being affected or his weakness will excuse these Delinquencies and whatever he acteth in self-defence or upon provocation of the attrocious injury of the Superiour or by publick Authority or in the service of his Prince or anterior Superiour in Ward-holding Or unless the attrocious Deeds be past from by the Superiour by owning his Vassal after the knowledge thereof or by a considerable times forbearance to quarrel the same especially when in the mean time either the Superiour or Vassal dies for though death obliterats Crimes as to the punishment yet the righ arising to the Superiour in the Fee from the Delinquence as a resolutive condition is not excluded by the Vassals Death if the Superiour were ignorant of the Fact or not in capacity to vindicat the same through publick Calamity or his Pupilarity or absence but by the mutual friendship and strict Union betwixt Superiour and Vassal small evidences will import the passing by former Delinquencies especially when not questioned during the life of both parties There are multitudes of specialities proposed by Craig as Delinquencies resolving Fees not only in relation to the Superiour his Person and Family but also of invading his House befieging the same or entering it by force or invading his Property which is the ground of Purprysion acknowledged by our Custom or by denying or refusing to show the Superiour the Marches of the Fee or denying any part of it to be holden of him or not showing him his Holding and Investiture being solemnly called to that purpose which take no place with us for our ordinary custom for Superiours as well as others is to pursue Improbations of their Vassals Rights wherein the Certifications is not the loss of the Fee but the presumptive falsity of the Writes or the denying to do justice to Superiours but also in relation to the Fee if he waste or deterioat it Yea in relation to the Vassals own Person as if he fall in Incest or if he kill his Brother or commit any Paracide or if he contract friendship with the Enemies of his Superiour And generally whatever may make him unfit or unworthy to attend his Superiou or to be in his Court but none of these are implyed in the Fidelity of any Vassal There be special grounds of resolution or extinction of Fees by the particular Nature or Tenor thereof as Feues become extinct ob non solutum canonem and other Fees are extinct by resolutive Clauses as to both which we have spoken Title 13. § Craig doth hold that by the delinquence of Vassals Conquest or feuda nova become extinct and return to the Superiour but Heretage or feuda vetera do but become extinct as to the delinquent Vassals and his Descendents but is not returned to the Superiour but divolved to the next Collateral of the delinquent Vassal descending from the first Vassal who would have succeeded if the delinquent Vassals had died without issue and who must enter Heir to the delinquent Vassals predecessor but in this the interest of the Superiour is too far restricted for we have no custom nor tenor to enter any person heir to a Defunct while a nearer heir is existent whatsoever his delinquence be except Paricide He doth also move this question That if the Vassal have committed a Feudal delict against the Superiour and a publick crime inferring forefaulture whether the Fee would fall to the King or to the Superiour or if the first sentence of forefaulture or recognition would prevail but does not determine it Yet the first deliquences sufficient to extinguish the Fee if insisted in must give the preference for the sentence of forfaulture or recognition is but declaratory and hath effect not from the sentence but from the deed inferring it There is no difference whether the delinquence inferring recognition was before the Vassal was actually entered or after but it is more questionable whether recognition would be incurred by the deeds of the appearand Heir in his predecessors life which could have no effect as to Collaterals who are not alioqui successuri seing they may be excluded by a descendent which in men is alwayes in hope And if the heir apparent die before his predecessor it can have no effect to exclude either his Collaterals or Descendents and it is more probable that though the heir apparent should survive he would not be excluded seing feudal delinquences are now so little extended 34. It hath been much and long debated and is not yet decided whether Recognition can be incurred for ay attrocious deeds dne by sub-vassals whereby the Superiour might claim the right of the sub-vassals Fee to fall to him by Recognition Or Whether Recognition can only be incurred by the deeds of the immediat Vassal The case in question was where a sub-vassal rose in rebellion against the King whereby his Fee as all his other Rights were confiscate to the King by forefaulture which could but confiscate them as they were in his person with the burden of all real Rights of Liferent Annualrent or other subaltern Infeftments of the forefaulted person But if the forefaulture of the sub-vassal did also comprehend Recognition the sub-vassals Fee would fall to the King and belong to his Donatar without any real Right or Burden contracted by the forefaulted person except such as were confirmed by the King either by a special Confirmation or by that general consent of the King inviting all his Subject to set their Ward-lands feu by the Act of Parliament 1457. cap. 72. which would preserve such Feus being constitute before the Act of Par. 1633. rescinding that Act as to the Vassals of the King and Prince as was found Feb. 12. 1674. Marquess of Huntley contra Gordoun of Cairnburrow November 16. 1681. Campbel of Silvercraigs contra Laird of Auchinbreck and the Earl of Argyle And therefore if Recognition were implyed in forefaulture in that case it behoved to infer a general rule that Recognition might be incurred by all attrocious deeds against gratitude and fidelity omitted not only by the
for the Fruits of a Field which are already growing is no Location but Sale and so of use or work already performed and therefore in the nature of this Contract there is a hazard and uncertainty in the conductor of the quantity or value of the Fruits use or Work the peril and profites whereof is the Conductors 71. But here ariseth the Question that in the case of the sterility of the Ground set or the absolute ceasing of the Use Fruit or Work whether the hire be due in that case The determination thereof will clear the exception of the former Rule concerning the peril and quantity of the Use Fruit and Work locat and therefore First Where the Use Fruit and Work doth altogether cease without the fault of the Conductor there the hire must also cease because the one is given as the cause of the other and the peril undertaken is not of the being but of the quantity and value thereof for instance if Land taken be inundat or sanded and so have no Fruit it is the common opinion of all that the hire or cane ceaseth to be due for that time Or if a Horse sett or a Servant hired die the hire or see is but due according to the time of their life but if they be sick or unprofitable for a time yet with hope of recovery and profite in that case there is no abatement Secondly Though the opinion of the Learned be very diverse in the matter of the barrenness of the Ground some accompting it if the half of the ordinar Increase fail some if the third and some leaving it to the common estimate of the place what is called barrenness or the arbitriment of the Judge yet I think it more rational to determine that case with the rest upon the former ground that if there be any profite of the Fruit above the expenses or work the rent or hire should be due 72. The like is in vastation by publick Calamity which hath been frequently decided upon occasion of the late Vastations but this will not extend to private accidents besalling the Cropt after the growing or reaping even though by accident it should be destroyed or burnt without the Takers fault the hazard is his own because it is not then respected as the Fruit but as a Body in being whereof he hath the property and peril But in publick Calamities by War not only the Cropt is taken away but the Tennants aredisinabled and hindered to Labour and therefore must have abatement this will take no place if the abundance of another year compense the sterility of the former l. 8. Cod. Locati 73. Seing the intent and effect of the Location is not to alienate the property of the thing Locat it followeth that this Contract is meerly personal and thereby there is no real Right in the thing whose Use Fruits or Work are Locat so that if the property of these things be alienate from the Locator the interest of the Conductor ceaseth and a singular Successor may recover it from the Conductor notwithstanding the Location which reacheth it only by the personal Contract as it did belong to the Setter and so it would be in our Tacks or Rentals by their own nature but it is otherways provided by a special Statute of which hereafter We shall speak nothing here of Feu-Farms which though they are Locations yet by the Law they become real leaving these to their own place 74. What shal be said of that Contract whereby Money or any Fungible is lent for the like in kind again with such a hire for the use thereof These are called Usurary contracts and they cannot be comprehended under Loan because they are not Gratuitous or under Location because the property and substance is alienat Usurary Contracts come nearest to Location but to repress the exorbitance of Usurers the Civil Law rejected Usurary Contracts and admitteth only of the profite of fungibles In some cases the Judicial Law also rejecteth them and prohibiteth Usury to be used among the Jews though they might use it with other Nations So doth the Canon Law disapprove it and most Nations where that Law is in vigor yet we and generally other Protestant Nations do allow of the profite and hire of Money or other Fungibles being within the proportion allowed in Law which sometimes was ten for each hundred in the year thereafter eighth and now six and therefore Usurary-contracts are only wherein there is unlawful or exorbitant profites beyond the Law So did the Civil Law allow usuras centesimas viz. one of an hundred Monethly and their Usuras besses semisses and Dodrantes In the several cases allowed in Law we have only one measure for all the nauticum foenus is where so much is given not only for the profite of the Money but for the hazard and peril of the Ware bought thereby or of other Fungibles by Sea and so it is a mixed Contract and in both cases Profite and Annualrent is lawful as having no moral countermand and so being free is not only subject to our pactions and promises which we are morally oblieged to observe but hath also in it permutative Justice in that Money Wine Oyl Grain or the like have a real use profitable to men by the exchange thereof and increase that may accrew thereby and for which proportionable hire may be lawfully and profitably constitute These Usurary-contracts therefore are to be reduced not to Loan but to Location though by accident they have that difference from the rest that the property is alienate because there can be no use of Money or Fungibles otherways The penalty of exorbitant Usury with us was that the Debitor for such Usury revealing the same should be freed of the Contract and if he did not any other revealing it should have right to the sum given out upon Usury and Profit thereof Par. 1594. cap. 221. But afterwards all taking of more Annualrent then ten per centum directly or indirectly by taking of Victual within the ordinary prices or buying Victuals for the Annualrent with exorbitant prices in case of not delivery or by improper Wodsetts having greater back-tack Duties then effeiring to ten per centum or otherwayes do confiscate their Moveables and the Sums so given out which the party cannot renounce but the Advocat hath interest to pursue therefore without the parties concurrence and if he concur he shall have restitution of what more Annual he payed norten per centum Parl. 1597. cap. 247. But the Annual was retrenched to eight per centum Parl. 1633. cap. 21. and to six per centum Parl. 1649. cap. revived Parl. 1661. cap. 49. But whether proper Wodsetts without back-tack though the Rent be much more then the ordinary Annualrent be an usurary Contract and falls under the general Clause of the said Act though it hath sometimes been essayed yet hath not been decided The main reason that the parties found on is on the one part that there
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
teind any other intrometteth therewith The former act is like Ejection and this is like Intrusion especially if the Teind-master have used Inhibition by publick Letters published at the Paroch-Church where the Teinds lye as an intimation to all parties having interest to forbear medling with the Teinds otherwayes then by order of Law which may be execute by any person as Sheriff in that part January 27. 1666. Earl of Eglintoun contra Laird of Cunninghamhead This Inhibition is the competent legal way to take off tacite relocation when Teinds have been set in Tack and the Tack expired and when they are in use of payment of certain duty and hath then the same effect that Warning hath in relation to Tennants of Lands and being once duly used it interrupts tacite relocation or use of payment not only for the years wherein it is used but for all other subsequent years March 18. 1628. Lord Blantyre contra Parochioners of Bothwel But the Titular may not by force draw the Teinds after Inhibition but must pursue therefore where there was any pretence of title else it is a Spuilzie in him January 27. 1665. Laird of Bairfoord and Beanstoun contra Lord Kingstoun Upon Process Spuilzie was sustained against the Heretor receiving a joint duty for Stock and Teind March 16. 1627. John Inglis contra Gilbert Kirkwood But it is not effectual to infer Spuilzie against Tennants continuing to pay their Masters a joint duty for Stock and Teind as they were in use before though the Inhibition was particularly intimat to the tennents seing they knew not how to distinguish the proportion of Stock and Teind having still payed a joint duty promiscuously for both December 12. 1627. Arbuthnet contra tennants of Fairnieflat But the priviledge of tennants paying to their Masters for stock and teind jointly was not extended to a Merchant buying a whole Cropt together who was found lyable for the teind though he payed before any diligence June 24. 1662. Mr. Alexander Verner contra George Allan In like manner Merchants buying the Herring where they were taken in the Isles were found lyable for the teind by immemorial possession so to uplift the teind-fish from the Merchants who bought whole boat-fulls of the Herring green December 13. 1664. Bishop of the Isles contra the Merchants of Edinburgh But as Warning so Inhibition of Teinds is taken off by accepting the old duty thereafter or of the ordinary taxation accustomed to be payed for the tack-duty Hope teinds Lord Garleis contra tennants of Whitehorn or by a small part of the old tack-duty ibidem Mr. Andrew Balfour contra Lord Balmerino John Glendinning contra tennants of Partoun 24. Rentalled teind-bolls is when the teinds have been liquidate and settled for so many Bolls yearly by Rental or old use of payment which presumeth a Rental By this means the beneficed persons gained an advantage of the possessors and therefore by the Kings Decreet Arbitral such teinds which are separat and severally set or known from the Stock had a diverse and dearer valuation and therefore rentalled teind-bolls were found due by use of payment immediately preceeding the debate though exceeding the worth of the teind till the teind in kind were offered and intimation made that the party would not continue the use of payment of rentalled Bolls March 22. 1626. Lennox of Branshogle contra tennants of Balfroon Teind-bolls were found due according to the old Rental though a lesser quantity was received by a Minister for several years Here the Bishop to whose Bishoprick the Teinds of that Paroch were annexed opposed the alteration of the old rentalled Bolls whereof a part only was allocat to and received by the Minister July 3. 1630. Mr. George Summer contra Stewart of Balgillo The like where there was a Decreet formerly for the Teind-bolls but prejudice to offer the Teind in kinde in time coming Feb. 20. 1633. Colledge of Glasgow contra Mr. James Stewart 25. The interest of Bishops in their Benefices is much alike with Ministers as to their entry which is regulat by their Consecration or Translation which if before Whitsonday gives them the benesit of that year and if after Whitsonday it gives them the half During their incumbence they have not only the Fruits and Rents of the Benefice but the power to set Tacks for nineteen years with consent of their Chapters Vide § 17. and to receive Vassals and to constitute Commissars all which are effectual after their death or removal They have also the Quots of Testaments confirmed by all their Commissars during their life or within the time of their Ann after their death but they have no Quots of Testaments not then confirmed although the persons died in their life or during their Ann because the Quot is due for the Confirmation as was found July 6. 1676. Bishop of Edinburgh contra Captain Wishart and for the same reason they have not the Compositions or Duplications of Heirs Apprisers or Adjudgers whom they do not actually receive in their life which will not belong to Executours or fall within their Ann but to the next Intrant who only can receive these Vassals 26. The Interest of Ministers in the Teinds may be considered either in their entry during their incumbency or after their removal In all which the Ministers interest is of two kindes for either he hath the Benefice Parsonage or Viccarage or hath only a Stipend modified thereof for these Benefices did ordinarly belong to the incumbents of particular Paroches and sollowed the Office of serving the Cure there and therefore when these Benefices were not erected in Temporal Baronies and Lordships or otherwayes so affected by Titles Tacks or new Erections that the Ministers thereby could not have a competency they betook themselves to the Benefice and had the same Right and Priviledges as to them as beneficed persons formerly had and might set Tacks thereof in the same way and with the same restriction as is before declared But more frequently the Ministers had modified Stipends which were appointed by the King and Parliament to be modified out of the Teinds whatever the Title or Interest of any other person were therein which they could not reach if they took them to the Benefice it self as they might have done by the Act of Par. 1581. cap. 102. Ordaining That all Benefices of Cure under Prelacies should be provided only in favours of able Ministers 27. The Interest of Ministers was according to the nature of the Benefices whereunto they were to have right or out of which their Stipends were to be modified for all Kirks were either Patrimonial or Patronat and by clearing Patronage it will easily appear what Kirks are Patrimonial For this distinction is taken from that of persons in the Civil Law in these who are ingenui or fully free and libertini or become free but with some acknowledgements and services to the Authors of their freedom who were therefore called their Patrons So there
the Creditors in the same cause it was first determined negativè and thereafter affirmative But it is not like the Lords would continue it not being the habile way to secure Creditors and being a great mean of insecurity to purchasers February 13. 1627. Samuel contra Samuel The negative is also observed by Spots Tacks James Morison contra Brown of Nunlands A Tack was preferred to an Apprising whereof the denunciation was fix dayes after the date of the Tack though the Apprising was led before possession upon the Tack March 25. 1628. Peter Blackburn contra William Gibsone 12. A Tack is a sufficient Title for Mails and Duties and against all poffessors and it is obligator against the setters Heir for the profit of the Land though the Tacksman was never in possession nor used diligence therefore during the setters life which was a long time July 13. 1610. Porterfield contra Ker and in some cases it is a good title for removing 13. A Tack set by a Husband and his Wife whereof the duty was payable to the longest liver of them two found to give her right to the Tack-duty after his death against his Heir though she had no other right of the Lands and was otherwayes sufficiently provided February 14. 1637. Home contra Hepburn A Tack set to a man and his wife for nineteen years found to belong to the wife as Liferenter if she survive and not to be disposable by the Husband without her consent Spots Marriage William Gourlay contra Jean Megill 14. As to the third point proposed concerning several kindes of Tacks they are either verbal or by write Liferent-tacks are for certain years ordinary Tacks or Rentals principal Tacks or Sub-tacks express Tacks or by tacite relocation and these which are set by Wodsetters to the granters of the Wodset are called back-tacks amongst which there are few specialities but what concerns Rentals Sub-tacks or tacite Relocations 15. A Rental is a Tack set to kindly Tennents which are the Successors of the ancient possessors or these who are received by the Heretor with the like priviledge as if they were ancient possessors And therefore when Tacks are set to persons acknowledging or constituting them kindly Tennents they are equiparat to these that are set expresly under the name of Rentals 16. Such Tacks are understood to comprehend more kindeness and friendship in the Tennent to his Master then other Tennents And therefore the Rentaller may not assign them nor introduce a sub-tennent unless the Rental bear expresly that power but may himself remain upon the ground as colonus the same being in his own labourage And Rentals are strictly interpret as to this point but are more favourably extended then other Tacks as to any other point because of the kindness and friendship designed to the Rentaller thereby and no Tack is accounted a Rental unless it bear so or that the Teunent is acknowledged as kindly Tennent And albeit after the expiring of Rentals there successors have no right to maintain them in possession yet frequently of favour they are continued and pay grass-sums at the renovation of their Rentals wherein they have ordinarly considerable ease 17. And therefore the ordinary Tacks must contain an express and terminat endurance otherwayes they are null not only as to singular successors but even as to the setter and his Heirs because they are not constitute habili modo And therefore if they have no time they laste but for a year and if they have no determinate time of ish they last no longer and they do not ordinarly give power of Assignation or Sub-tack unless this be exprest Yet the granting of them does not annul the Tack but only the Assignation or Sub-tack without warrant annuls these but they annul Rentals like to the alienations ofWard-vassals 18. Rentals do require write not only as a probation but as a solemnity in their constitution and can be granted by none but the Heretor of the Ground but if they be renewed by Tutors for the accustomed Grassums it may be accounted as an Act of lawful administration much rather then that Tutors should have power to expell the kindly tennents It hath not come in controversie whether Donatars of Ward Non-entry or Liferenters may expel kindly Tennents Or whether their Title would not be relevant to defend in removings against them though not against the Heretor wherein this would make for them that all these temporary possessors have not plenum dominium and can but make use of the Fee as the proprietars did though they may out-put and in-put ordinary tennents The old Decisions have varied whether a Rental be sufficient being in the Heretors Court or Rental Book though the Rentaller can show no original subscribed by the Heretor yet there are Decisions for it more then against it July 5. 1625. Maxwel contra Grahame Nicol. removing Lady Lugtoun contra hertennents 19. Some old Decisions sustain Rentals only for a year when they mention no endurance though they be set expresly as Rentals which do not quadrat to the nature and design of Rentals whereby the Rentaller being entered is only to be understood to be for his Life and his Successors ever to be in his Masters power to renew or not to renew according to the Rentaler and his Successors carriage except the Contract be very clear and express and therefore a Rental set to the Rentaller and his heirs without expressing a certain number of heirs was found only to stand during the life of the Rentaller July 5. 1625. Laird of Aitoun contra Lady Wedderburn Hope rental Lord Seatoun contra his tennents Nicol. removing Laird of Corsbie contra Donaldson And where a rental bore to Heirs indefinitely the right of the first heir wassustained by the custom of the Barony March 15. 1631. Earl of Galloway contra Burgesses of Wigtoun And a Rental bearing to the Rentallers heirs Heretable ad perpetuam remanentiam was sustained as to the first heir of the rentaller without necessity to alledge custom so to set March 13. 1632. Achannay of Kirkdale contra Aitoun Albeit the tenor of it was contrary the nature of a Tack and might have been excluded as to any Heirs and sustained only as to the rentaller himself unless the custome of the Barony had altered the case which in dubio is always to be respected 20. Grassum do presume kindliness and in some Baronies these are renewed both at the death of the Heretor and at the death of the tennent but more ordinarly at the death of the tennent only yet in either case if the grassum be received from the tennent and thereby he acknowledged by write as a kindly tennent he cannot be removed by the Heretor or his heirs even though he had not a formal Rental because the matter is not intire by receipt of the Grassum and therefore there is no locus penetentiae upon restoring thereof especially as to the Successors of old tennents paying
of the debt arrested was preferred to a prior arrestment laid on before the Term of payment upon the debt arrested July 5. 1673 Birnie contra Mowat and Crawfoord And an arrestment laid on verbally by a Towns Officer was excluded by a posterior arrestment having an Execution before witnesses albeit the verbal execution was the custom of the place July 19. 1678. Warrock contra Brown And a first arrester was not excluded for want of diligence but was preferred to a posterior Arrester who had brought his Cause to be concluded at which time the prior arrester compeared and produced an assignation after his arrestment from the common debitor whereby he needed no further diligence July 19. 1673. Birnie contra Crawford This 〈◊〉 was found no voluntary Gratification seing it preferred the first legal diligence And upon the same ground an Assigney by a Bankrupt was preferred to a posterior Arrester in respect the Assigney had used the first diligence by Horning before the arrestment Novem. 20. 1677. Bishop of Glasgow contra Nicolas and Brown TITLE XXIV Dispositions Where of Resignations in favorem Appryzings and Adjudications of Real Rights 1. Dispositions of Properly carry virtually all Lesser Rights 2. How superveening Rights belonging to Authors belong to their singular successors 3. Dispositions descrived 4. How dispositions are accomplished in equity 5. How by the Law of the Romans and other Civil Nations 6. Possession accomplisheth reall Rights 7. Properly of Moveables is presumed from Possession 8. Resignation in favorem 9. Dispositions or Assignations by these who have no Right with consent of these who have Right how far effectual 10. Procuratories or Infeftments of Resignation after fourty years possession by Charters needs not be produced 11. Infeftments on Resignation carries any lesser right in the disponer though not exprest 12. The effect of resignations accepted by the Superiour before Infeftment follow thereon 13. Superiours are not oblieged to receive the singular Successors of of the Vassals after Infeftment expede though it bear to the Vassals Heir and Assigneys 14. Appryzings can only proceed on liquid sums 15. Appryzings reaches al Heritable Rights though not provided to Assigneys 16. Appryzings carry all personal Rights without Intimation 17. The rise of Infeftments upon posterior Appryzings 18. Infeftments may be obtained summarly upon Appryzings after the debitors death 19. The effect of Appryzings as to Non-entry Ward and Liferent-escheat 20. The denunciation whereupon Appryzing follows renders the matter litigious and excludes posterior voluntary Rights 21. Competition of Appryzings 22. The effect of Appryzings at the Instance ofSuperiours against their own Vassals 23. The effect of Appryzings as to Removings Mails and Duties 24. Allowance of Appryzings 25. Whether Superiours must receive appryzers not instructing their authors Right 26. The quantity of the Years Rent due to Superiours for entering Appryzer 27. What course is competent against contumacious Superiours 28. The Legal Reversion of Appryzings 29. Appryzers may use other diligence for their payment though the Apprizings were expired 30. Nullities of Apprizings 31. Modification of exorbitant Penalties in Apprizings 32. Apprizing sustained without a charge for the sum 33. Apprizing sustained though the Letters and Execuitons were blank as to the Lands the Messenger who denunced being Judge to the Apprizing in which they were filled up which was a more solemn Execution 34. An Apprizing sustained without producing the Letters of Apprizing being long before but the Instructions of the debt were found necessary to be produced within Prescription 35. An Apprizing sustained though by dispensation at a private place and the Court of Apprizing adjourned 36. An Apprizing of Rights generally preferred to a posterior Apprizing of the Right in special being an Annualrent 37. Apprizings become extinct by payment and the debitors Right revives without new Investiture 38. In what cases Apprizers must possesse and how they are countable 39. What alterations in Apprizings are Introduced by the Act of Parliament 1661. cap. 62. as to the indurance of the Legal and coming in pari passu 40. Now Apprizings coming in the person of the Debitors appearand Heir are satisfiable from him or his Trusties 41. How Apprizings against parties charged to enter Heir are redeemable 42. Legals run not against Minors 43. Apprizers continuing to possess after the Legal can use no other diligence but the sums are thereby satisfied though a part of the Lands were evicted the rest being worth the whole sum 44. The rise of Adjudications 45. The Form of Adjudications on Renunciations to be Heir 46. Why Adjudications past at random and may now be put to Instruct some Interest in the Debitor 47. What Rights are affected with Adjudications 48. Superiours must receive Adjudgers paying a years Rent unless they pay the Creditor and then the Superiour will have no years Rent 49. How Adjudications are Redeemable 50. Adjudications may be for the appearand Heirs own debt 51. How Adjudications become Extinct 52. The form and effect of Adjudications to perfect Dispositions 53. The form and effect of the partial and total Adjudications introduced by the Act of Parliament 6. of September 1672. A DISPOSITION may and sometime doth signifie the alienation of any Right whether real or personal so the stile and translations ordinarly bears the assigney to transfer and dispone as assignation is sometime extended to the disposal of real Rights which are srequently provided not only to Heirs but to Assigneys yet these Terms are so appropriat and distinguished that a Disposition is applyed to the alienation of real Rights and Assignation of personal Rights 1. In both dispositions and assignations the Disponer or Cedent is called authour and the acquirer is called the singular successor and in both this common Brockard takes place jus superveniens authori accrescit Successori that is what ever Right befalleth to the author after his Disposition or assignation it accresseth to his Successour to whom he had before disponed as if it had been in his Person when he disponed and as if it had been expresly disponed by him whence ariseth the distinction betwixt dispositions and assignations express and implicite or tacit when the Right is not expresly disponed but tacitely or virtually as he who dispones the property hoc ipso doth tacitely and virtually dispone any lesser Right as a Reversion Servitude Liferent though no particular mention be of these according to another Rule of Law majori inest minis so ary person Infeft in Property and his Seasine Registrat will have right to a Reversion if no more was in the Disponers Person albeit assignations to Reversions require special Solemnities as to be registrat in the Register of Reversions yet the Registration of this Seasine will be equivalent so a Liferent Right granted by him who had only right of Tack was found to carry the right of that Tack during the Liferenters life Hope Liferents Laird Rossyth contra his Tennents The like of a Back-tack Ibid. Lady Boyd contra her Tennents Stuart
Band was found sufficient warrand for Registration of it and Execution thereupon And the Denunciation against the Husband was not taken off by dissolution of the Marriage before Declarator December 23. 1673. Thomas Dalmachoy contra Lord Almond 13. Horning though orderily used proceeding only upon generall Letters by Supplication against all and Sundry unlesse it be against a Burgh Colledge or Communitie proceeding not upon a Citation and for a special and certain Dutie the Denunciation thereupon hath no effect as to Escheat or Liferent though Caption usually follow thereupon Par. 1592 cap. 140. Which Act doth declare such Executions null And therefore such a Horning was not found sufficient to debarr a partie as not having personam standi in judicio January 24. 1674. Blair of Glascun contra Blair of Baleid much lesse can these general Letters make Escheat to fall or Annualrent be due yet Caption proceedeth upon it and useth not to be quarrelled 14. Horning is taken off and ceaseth by Relaxation which requireth the same Solemnities of Publication and Registration as Hornings do As is clear by the forcited Acts of Parliament thereanent But it doth only operat to free the Rebel relaxed as to his goods and others acquired after Relaxation February 14. 1635. Lochart contra Mosman December 23. 1673. Thomas Dalmachoy contra Lord Almond It is also ordained that all Copies of Summonds and Letters delivered by the Executer thereof shall be subscribed by him Par. 1592. cap. 139. I have not observed any Exception founded upon this Act which though it expresseth not a nullitie yet ought to be a rule to Messengers especially in Hornings and Inhibitions which may prefer any other more orderly diligence 15. The effect of Horning dulie used and Registrat in manner foresaid is that thereby the whole moveable Goods and Debts of the parties Denunced are Escheat and Confiscat and all that he shal acquire thereafter till he be relaxed Whereupon the Thesaurer used to cause raise Letters of Intromission for uptaking of the Escheat Goods direct to Sheriffs and Messengers And in case they be deforced or the Sheriff not able or willing to Execute the same Lett es will be direct to Noblemen and Barrons within the Shire to Convocat the Leidges in Arms and to make effectuall the former Letters Immediately Par. 1579. cap. 75. But this is long in Desuetude This is also an effect of Horning that the partie Denunced hath not personam standi in Judicio either as Pursuer or as Defender yet the Lords would not hold him as Confest if he appeared and were hindred by the other partie July 12. 1676. Sr. William Purves contra Sharp of Gospetrie The same will hold in any thing requiring the personal presence of the Denunced as byding by a write quarrelled of Falshood For clearing the matter of Escheats it will be necessary to show First what falls under single Escheat 2. How farr the same is burdened or affected with the Denunceds Debts or deeds for the first single Escheat extends to no Heritable Right whether of Land Annualrent or Heritable Band but itcarries the bygones of all these preceeding the Denunciation And there after till year and day July 1. 1626. Halyburton contra Stewart Hope Horning Sr. Hendrie Wardlaw contra William Dick. What Rights are Heritable and what moveable hathbeen shown before Title Real Rights So thatall which is there Moveable except Moveable Bands bearing annualrents falls in the single Escheat and somethings are Moveable in Relation to Escheats which are not Moveable in Relation to the Succession of Airs or Executors As Tacks not being Lyfrent Tacks Par. 1617. chap. 15. It carries also the Office of a Clerk-ship Hope Horning Mr. Hendrie Kinross contra James Drummond And likewise the Jus mariti of a Husband and therewith per consequentiam the Lyfrent right or other right of the Wife belonging to the Husband Jure mariti Spots Escheat Violet Dawling contra William Cochran It carrieth also all casualities befalling to a Rebel Denunced before the Denunciation As the Lifrent Escheat of his Vassals Felrury 13. 1611. Symson contra the Laird of Moncur But if the casuality had fallen to the Superior after the Superiours own Liferent had fallen by his Rebellion year and day it would be carried with the Superiors Liferent Escheat February 26. 1623. Clunie contra Bishop of Dunkell And if the Liferent Escheat or any other casualitie be gifted the gift makes it Moveable and so to fall under the Donatars single Escheat March 10. 1631 Francis Setwart contra the Ladie Samuelstoun And the single Escheat of Husband carrieth their Jus mariti and in consequence the Liferent of their Wives for though the Wifs right be a Liferent which wouldnot fall under single Escheat Yet the Husbands Right Jure mariti is no Liferent for if the Wife die before him his Right ceaseth in his own Life Tacks also fall under single Escheat unlesse they be Life-rent Tacks and Assignations to Life-rent Tacks and other Life-rents have been found to fall under single Escheat because the direct Right is incommunicahle For no Life-renter can put another Life-renter in their place but canonly assign the profits befalling to the Life-renter by the Life-rent Right So that it is no Life-rent in the Assigney but is as the jus mariti in a Husband which is as a Legal assignation Likewise Clauses of Relief in Heritable Bands fall under single Escheat because there is no Heritable Clause adjected to the Clause of Relief but Assignations to Heritable Bands makes them not fall to under single Escheat because the Creditors right is directly Transmitted and Stated in the Assigneys Person The single Escheat of Ministers carries the meliorations of their Manses but the Escheat of an Executor carries no more then what is his own Interest and not the Share of the Wifes Bairns Creditors Legators or nearest of Kin which is Escheat by their own Rebellion only even though the Testament were Execute by Decreets at the Executors instance against the Debitors December 21. 1671. Mr. Arthur Gordon contra Laird of Drum 16. As to the other Question how farr the Denunceds Debts or Deeds affect his Moveables fallen in Escheat it is clear that the Debt contained in the Horning affects the Escheat whether in the hands of the Thesaurer or Donatare Par. 1551. cap. 7. Par. 1579. cap. 75. And likewise all Intrometters with Escheat by Gift Assignation or otherways upon a single Sum monds of Six days Par. 1592. cap. 143. Secondly It is clear that no Assignation Disposition or other Deed done by the Denunced after Denunciation not being for fulfilling an Anterior Obleigment before Denunciation for a Cause onerous to a lawful Creditor can affect the Moveable Goods or Debts of the Denunced But when the Denunciation is upon a Criminal Cause the Escheat takes not only effect from the Denunciation but from the committing of the Fact Therefore a Donatar of Escheat recovered a Sum due to the Rebel though
Adjudications and Appryzings as they are legal Executions and of the Order and Solemnities requisite to them as such but only as they are Conveyances of real Rights wherein we shall consider first upon what ground Appryzings proceed Secondly against what Rights they are competent Thirdly what is the effect of the Process or Decreet of Appryzing without further Diligence Fourthly what is the effect thereof when further Diligence is used Fifthly what is the effect thereof when Infeftment is obtained And lastly in what manner it ceaseth and becometh extinct 14. As to the first Appryzing is an Appretiation and Judicial Vendition of the thing appryzed from the Debitor to the Creditor and as in all Venditions there must be merx and pretium or the price in numerat Money for if the mutual consist in any thing else it is not Sale but Exchange therefore the ground of Appryzing must be numerate and current Money and if originally it be not so it must be liquidat before Appryzing can proceed neither can it proceed but upon a Decreet establishing the Debt by Registration or otherways in the person of the Appryzer active and of the Debitor Passive yet an Assigney intimating before the Cedents death may Appryze summarly without Action establishing the Debt in his person as hath been shown Title Assignations Neither could Appryzing proceed upon Heretable Bonds unless the same had been made moveable by Requisition or Charge and therefore was found null proceeding upon an Heretable Sum bearing a Clause of Annualrent though payable without requisition upon a single Charge of six days seing that Charge was not given July 20. 1622. John Cranstoun contra Laird of East-nisbit Hope Obligations Alexander Mowat contra the Creditors of John Richardson John Cranstoun contra Laird of Lugtoun But Posterior Decisions have run in the contrair that if the sum were payable without Requisition Appryzing might proceed thereupon without a Charge as well as Poynding or Arrestment July 4. 1627. Edgar and Johnstoun contra Findlason July 10. 1629. Clackmannan contra Barroun In which case the principal sum was payable at a precise Term and no mention of any Term or time thereafter and yet was Appryzed for after that Term January 25. 1642. John Seatoun contra James Loch But if Infeftment have followed or Requisition be requisite the sum must be made moveable before Appryzing But other Sums though by Destination Heretable yet having Summar Execution by the parties consent Appryzing is sustained thereupon 15. As to the second point against what Rights Appryzings extend First though Letters of Appryzings contain power to poynd Moveables which must be searched for yet that which is properly called Appryzing extends to no Moveables but only to Heretable Rights as Lands Annualrents Liferents Tacks Reversions Heretable Bonds July 25. 1623. Earl of Errel contra Buckie and therefore it extends not to the Mails and Duties of the Appryzed Lands before the Appryzing Feb. 14. 1623. Saltcoats contra Home The like though the question was against the Debitor himself and that the style of the Appyzing bore all Right that the Debitor had to the Lands to be Appryzed March 13. 1627. Mackre of Balmagie contra Livingstoun And where an Annualrent is Appryzed it extends not to the bygone Annualrents which are Moveable but these being Moveable are Arrestable neither doth it extend to the Duties after Denunciation and before Appryzing Feb. 16. 1633. Harper contra Cockburn and Johnstoun Appryzing is extended to all Heretable Rights though they were not provided to Assigneys but to the Debitor and his Heirs only or failing such Heirs to return and therefore publick utility and the favour of the Creditor makes it more effectual then any voluntar Disposition or Assignation could be so an Appryzing was found to carry a Right though not granted to Assigneys Hope Appryzing John Brown contra Fssilmont of Buckie And a Husband granting Right to his Wife but with provision that she should renounce it if he required it in his own life allennerly a Creditor of his Appryzing that Land and requiring the Wife to renunce was found to have right thereto spots Appryzing Lady Huttonhal contra Cranstoun of Moristoun An Appryzing of the ground Right and Property of Lands and all other Rights c. carryeth not only the Property but all other real Right or Obliegements for granting thereof and though no Infeftment follow the Appryzing so conceived will carry any Right which requireth not Infeftment as if it had been specially Denunced and Appryzed June 19. 1635. James Rule contra Alexander Home 16. To come now to the third Point concerning the Efficacy of the Process and Decreet of Appryzing without further Diligence and first it hath the effect of an Assignation without necessity of Intimation and carries all Rights which require not Infeftments to transmit them as Liferents Reversions Tacks And so an Appryzing was found to carry the Legal of an anterior Appryzing though the Denunciation whereupon it proceeded was anterior to the Denunciation whereupon the first Appryzing proceeded and thereby at the time of the Denunciation of the second Appryzing neither was the first Appryzing in being neither the Denunciation thereof and so could not be Denunced or Appryzed yet the Denunciation of the Ground-right and all Right competent or that might be competent to the Debitor was found to carry the Reversion of the said first Appryzing Novem. 18. 1624. Doctor Kincaid contra James Halyburtoun 17. Though second Appryzings carry the legal Reversions of anterior Appryzings without Infeftment Yet Infeftment is frequently taken thereupon that the posterior Appryzer may have Interest thereby to reduce or quarrel the Anterior Appryzings and to pursue for Mails and Duties or Removing if the Anterior appryzer should forbear 18. The second effect of Appryzing is that the Debitor is thereby so far divested that after his death Infeftment may be taken by the Appryzer without transfering or Infefting the Debitors Heir Novemb. 20. 1624. Lag contra his Tennents So likewise the heir of the Appryzer dying before allowance or Infeftment upon Supplication obtained allowance from the Lords and Letters to Charge the Superiour to receive him Spots hic Alexander Frazer Supplicant The like was granted by the Appryzers Assigney March 22. 1626. Collace contra Lord Elphingstoun Yea an appryzer did obtain allowance and varrand to Charge the heir of the Superiour contained in the first allowance being dead Decem. 5. 1628. Laird of Corsbie contra Kilsyth From this ground it is that an Appryzing excludes prior assignations granted by the Debitor to the Mails and Duties of the Lands appryzed as to Terms after the appryzing Hope assignations George Meldrum contra Laird of Anstruther 19. And when an appryzing was led before an Husbands death it excluded his Wife from a Terce Hope appryzings James Chrightoun contra Relict of John Cranstoun Where he doth also observe it to exclude a subsequent Ward in respect the Superiour gave a Charter upon the appryzing in his Vassals life
though no Seasine followed thereupon Ibidem George Hamiltoun contra Tennents of Newburgh And albeit Dury observes that in the case betwixt the Lord Fleming and the Lord Balmerino dispute the 7. of March 1633. it was not decided but superceeded in hopes of agreement whether a Superiour could be compelled to receive the Minor himself till his Majority it seems the Superiour ought to receive the appryzer upon his legal diligence but prejudice of the Ward during the Minority of his former Vassal though he would not receive the Minor yet he would be necessitate to receive the appryzer and his heirs whatsomever though the Lands were Tailzied and to return to the Superiour himself 20. The third effect of appryzing is that being a legal diligence it renders the thing appryzed litigious not only from the date of the appryzing but from the date of the Denunciation So that no voluntary deed of the Debitor after the Denunciation can prejudge the appryzer if he be not in mora Thus a Tack set by the debitor after Denunciation was found null Spots appryzing Peter Blackburn contra Walter Balvaird Yet where the appryzer was negligent and obtained not Infeftment nor did diligence therefore for some years a Tack set by a Debitor before the appryzing but having its Entry after the appryzing was preferred thereto July 11. 27. Wallace contra Harvie Yea no Infeftment or diligence being used upon an appryzing for many years an arrestment thereafter was preferred to the Mails and Duties of the Landsappryzed Feb. 14. 1623. Saltcoats contra Brown But Custom since hath always preferred appryzings to arrestments although there were no Infeftment or diligence upon the appryzing because it is a legal assignation and needs no Intimation unless the appryzer had relinquished his right and therefore though that case of Saltcoats was adduced an appryzer of an annualrent was preferred to an arrestment though the appryzer neither was infeft nor used diligence for nine years before the arrestment Feb. 23. 1671. Lord Justice Clerk contra Mr. John Fairholm It is said no voluntary disposition deed of the debitor after the denunciation will prejudge the appryzing because if the deed done thereafter be necessary and that thereunto the debitor was specially oblieged before and might have been directly compelled such even after denunciation may be preferred as an annualrent proceeding upon a Bond prior to the denunciation containing an obliegemement to Infeft in that annualrent the Infeftment thereupon though after denunciation was preferred Hope appryzing Samuel Henderson contra John Mcadam The like of an Infeftment whereof the Charter was before denunciation and the 〈◊〉 before the Seasine upon the appryzing Ibid. The like of an Infeftment upon Resignation which Resignation preceeded the Denunciation and though the Resignation was at first refused by the Superiour being accepted thereafter it was preferred Ibid. Mr. Thomas Hope contra Mr. Thomas Hendrison And so an Infeftment upon a disposition for a Cause onerous Which disposition was of the same date with the denunciation and whereupon Infeftment followed before the appryzing was preferred to the appryzing Spots appryzing Mark Hamiltoun contra Brown Yea an Infeftment upon a disposition posterior to an appryzing was preferred thereto seing the Appryzer did no diligence for six years Ibid. Hamiltoun contra Mcculloch 21. In the competition of Appryzings being both legal diligences The first appyzer doing sufficient diligence is preferred as the first appryzer last Infeft but having 〈◊〉 Charged was preferred though the Superiour did voluntarly Infeft a posterior appryzer Jan. last 1632. Ferguson contra Mckenzie Yea a posterior appryzing was preferred to a prior where the debitor by Collusion suspended the Letters and denunciation of the one and not of the other whereby the other appryzed first Nov. 28. 1628. Borthwick contra Clerk The like where the prior proceeded upon a Citation of the party upon sixty days as being out of the Countrey and the debitor was brought to the Countrey of purpose that a posterior denunciation upon fifteen days by another appryzer might give him the first appryzing and yet the other was preferred Nicol. Tennents of Cockburnspeth contra Sir Hendry Wardlaw and upon the late competition betwixt the Laird of Clerkintoun pursuing a Reduction of Corsbies appryzing as collusive in so far as after his author Sir William Dick had Charged the Superiour with the first Charge upon the Letters of four Forms they gave Infeftment to Corsbie before the dayes of the first Charge were Expyred the Lords reduced the Infeftment but assoilzied him from bygones as possessing bona fide and seing the pursuer suffered him to possesse without pursuit till the legal was expyred they found that Corsbie as now the second appryzer might redeem December 3. 1664. inter eosdem 22. The fourth effect of an appryzing is that being led by the Superiour against his Vassal it needs no Infeftment but consolidats the property with the Superiority and is preferable to all posterior appryzings whatever be their diligence Spots appryzing Stevinson contra Laird of Craigmiller But in other cases appryzing without further diligence doth not transmit the real Right though it may exclude assignations to Mails and Duties or arrestments upon personal debts it is no sufficient title for Mails and Duties against any other having any real Title March 5. 1628. Andrew Scot contra Tennents of Whitesland 23. As to the fourth point concerning the efficacy of appryzings whereupon diligenceis used before Infeftment obtained They have no effect to remove Tennents though the Superiour was Charged and the Letters found orderly proceeded against him and though only proponed by the Tennents and no party pretending right March 25. 1628. Lockhart contra his Tennents But the appryzing with diligence hath this effect First it is a sufficient title for Mails and Duties against the Possessors Secondly it excludes all posterior Infeftments or Diligences by the Collusion or voluntary deed of the Superiour or any other Thirdly It is effectual to compel the Superiour to receive and Infeft the appryzer upon payment to him of a years rent which was formerly by Letters of four Forms till the Statute 1644. cap. 43. whereby one Charge upon twenty one days is sufficient all which proceeds upon the allowance of the Lords upon the back of the appryzing And albeit the Act is not revived in the late Parliament yet the Lords continue the Custome 24. This allowance of appryzings is appointed to be registrate and not the whole appryzing Par. 1641. cap. 54. yet neither the want of the allowance nor the want of Registration thereof annulleth the appryzing till the last Act of Par. 1661. cap. 31. making the Registration of the allowance necessary Otherways posterior appryzings first allowed are to be preferred unless without allowance the appryzer hath obtained Infeftment before the others Diligence upon which grounds the Lords upon Supplication without Citation ordained an appryzing to be allowed and registrate long after sixty days and after the debitors death seing it
delictum should not be competent after the Intrometter's Death It was also thought by the whole Lords after dispute in presentia upon this Title That it takes only place where there appeared the apparant Heir's animus immiscendi adeundi haereditatem and not where he hath any probable or colourable Title Spots Heirship Corser contra Durie Yet in favourable cases a smal Intromission was sustained as making use of the Defnuct's chief Bed and Board though standing in the Defunct's House seing the Heir entred the House before he obtained Inventary of the Moveables made by authority of a Judge though the House belonged to himself proprio jure March 8. 1610. John Bailzie contra Hoom of Bassenden Or by Intromission with a Mazer Cup of the Defunct's and drinking therein entering in the House when he died lying in his Bed and bed Cloaths standing there and wearing his Silk Stockings though all these were undisposed upon and that the Defunct's Mother who had given them to her Son had medled therewith who died in a Chamber belonging to his Mother and his name was upon the Mazer January 15. 1630. Cleghorn contra Fairly 6. There are two Cases of Behaving as Heir viz. Intromission with the moveable Heirship and Intromission with the Lands Teinds Tacks or other Rights which might have belonged to the Intromitter as Heir In both which cases the Intromission will not infer this passive Title unlesse the Intrometter might succeed in the same particulars And therefore the apparant Heir of Line and no other can be lyable by Intromission with Heirship moveable because the same can only belong to the Heir of Line So the Intromission with Rents of Lands Tiends or Tack will not infer gestionem unless by the apparant Heir who would succeed therein according as they are provided to Heirs of Line of Conquest Heirs male or of Tailzie or Provision Neither will any other Intromission be relevant but what is immediat or by express Warrant Command or Ratihabition 7. A Tutor or Curator's Intromission will not infer gestionem upon his Pupil unless he accept the same from the Tutor in his Accompts Nor the Intromission of one having a general Commission as Factor c. It was so found in the Case of a Tutor's Intromission with the Rents of the Pupil's Predecessor's Lands for the restitution whereof he was only found lyable Nevember 3. 1665. David Boyd contra Tailzfair 8. Behaving as Heir by Intromission with the moveable Heirship is most unquestionable when the said moveable is chosen drawn and separat by the Heir from the remanent moveables In which case the apparant Heir will not be admitted to alledge that the Defunct could not have an Heir or Heirship moveable when he formerly drew the same July 13. 1631. Laird of of Gadgirth contra Laird of Auchinleck But it seems very hard where the apparant Heir's choice of such particulars as the best of every Kind for her Heirship doth not evidently appear for that must be accounted the best which is such in the opinion of the apparant Heir And yet in favourable Cases Intromission with any Kind of moveables out of which Heirship may be drawn will be found sufficient and repute as the Heir's choice As the apparant Heir's making use of his Fathers Board lying in his Bed though he disposed not thereof and though the same were standing in a House disponed to him by his Father before contracting of the Debt pursued on seing he continued two years in possesion and got no Warrant from the Lords or made any Inventary thereof July 14. 1626. Gilbert Johnston and Masson his Spouse contra Masson The like by making use of the Defunct's Bassin Silver Spoons Timber Beds and Boards without alienation thereof though the beginning of the Intromission was when the Intrometter was not apparant Heir himself but was Tutor to another Heir who was Idiot seing he continued five years after the Idiot's Death himself being then apparant Heir January 17. 1627. Frazer contra Monimusk Yet the contrary was found where the Intromission began before the Intrometter was apparant Heir there being a nearer apparant Heir though it continued after that nearer apparant Heir's Death when the Intrometter was apparant Heir July 〈◊〉 1629. Mr. Robert Cuuingham contra Moultry Yea Behaving as Heir was sustained by Intromission with certain Goods of the Defunct which might have been Heirship though they were confirmed promiscously by an Executor and bought from him by the apparant Heir But this Executor was his own domestick Servant and confirmed to his own behoof December 16. 1630. Weir contra Ker of Cavers The like where the Heirship Goods were sold to the apparant Heir by a stranger seing they were not delivered to that stranger but possest by the Defunct till his Decease but his possession continued by the apparant Heir Nicol. Plus valet quod agitur Feb. 9. 1621. Melvil contra Melvil But the contrary was found the Goods being disponed by the Defunct to the apparant Heir albeit not delivered before his death otherways than that the Defunct being un-married came to his Son's House and lived with him till his death January 30. 1630. Calderwood contra Porteous Neither was the same inferred by a Disposition of the Defunct to his apparant Heir of certain moveables in satisfaction of his Heirship moveables whereunto he might succeed Feb. 24. 1636. Meidhope contra Hepburn 9. The ordinary Objections and Exceptions against Behaving as Heir by Intromission with the Heirship moveable are First That the Defunct was neither Prelat Baron nor Burgess to whose Heirs only Heirship moveable is competent by the Act of Parliament the extent whereof is shown in the former Title And therefore the Pursuer must condescend and instruct that the Defunct was either Baron Prelat or Burgess which would besufficiently instructed by the Defunct's Infeftments of Lands or Annualrents at any time for thence it would be presumed that he continued undenuded till his death semel baro semper baro presumptivè And this will be elided by this Exception That the Defunct was denuded before his Death For though some have been of opinion that semel baro semper baro is meant that though a Person once infeft were denuded yet his Heir would have Heirship as a Baron For which I find neither Reason nor Decision But it is most reasonable that he who is once proven to be a Baron should be presumed so to continue unless the contrary were proven that he was denuded It was so found January 27. 1636. Straiton contra Chirnside But if the Legal was not expired at the Defunct's Death he is not esteemed denuded and therefore his Heir hath Heirship Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis July 8. 1628. Dumbar contra Lesly Neither will it be sufficient that the Defunct was once Burgess but itmust be proven that when he died he was acting as a Burgess So that neither the Heirs of honorary Burgesses nor they who once were
trafficking Burgesses and take themselves to a Country Life their heirs will have heirship moveable And therefore semel civis semper civis is not presumed Neither semel paerlatus semper praelatus for if a beneficed Person were deprived or demitted before the Death his heir would have no heirship moveable 10. The second Defense against Intromission with heirship moveable and which is also competent against Vitious Intromission is That the Defunct died Rebel and his Escheat was gifxted and declared before intenting of the Creditor's Pursuit June 10. 1663. Gordon of Lismoir contra Keith June 10. 1674. Lady Spenserfield contra Hamilton of Kilbrachmount December 22. 1674. Heirs of Seatoun of Blair contra Sr Alexander Seatoun And It is not necessary to alledge That the apparent heir had any Right or Tollerance from the Donatar For the Exception is equiparat to Executors confirmed against Vitious Intromission whereby Vitious Intromission is excluded albeit the Intromission was before another was confirmed Executor if the Confirmation was before intenting of the Creditor's Cause But it is no relevant Defense That the Defunct died Rebel and so had no moveables but that they were confiscat Neither was it sufficient that the Escheat was gifted not being also declared before the Creditor's Pursuit As was found in the said two first Cases 11. The third Defense is That the apparant Heir intrometted by a Gift to himself or to his behoofe or by a Right or Tollerance from a Donatar These being prior to the Creditor's Pursuit although posterior to his Intromission albeit not declared are relevant because the Donatar thereby is in possession and needs no Declarator Feb. 26. 1663. Cuthbirt of Drakies contra Monro of 〈◊〉 June 10. 1663. Gordon of Lismoir contra Keith July 4. 1674. Mr. William Innes contra George Wilson June 10. 1674. Lady Spenserfield contra Hamilton of Kilbrachmont Feb. 10. 1676. Grant contra Grant 12. The fourth Exception is When Moveables belonging to a Defunct remain in his House whereunto his apparant Heir hath Right by Infeftment wherein the Defunct had his Liferent or Tollerance if the Heir enter in possession of the House if at his entry he represent to any competent Judge that there are Moveables in or about the House belonging to the Defunct which he desires to be inventaried or that such as cannot be preserved may be sold that the price may be made forthcoming to all parties having interest if Inventary or Sale be made by warrant of that Judge the continuing of these Moveables in the House or the Sale of those which cannot be preserved will not infer Behaving as Heir Yet the making use of the things in the Inventary or the Sale of that which is not warranted yea the ommission out of the Inventary of Moveables of any considerable value was found to infer Behaviour January 25. 1632. Helen Scarlet contra John Paterson 13. The other ordinary member of Behaving as Heir is by Intromission with the Rents of Lands or Tiends whereunto the Defunct had Right by Infeftment or entering in possession of these Lands and Tiends unto which the apparent Heir would succeed which is the most direct Behaviour as Heir and is only competent against such persons as might be Heirs in that whereinto they immix themselves And so an Heir of line poslessing or intrometting with the Rents of Lands provided to Heirs male or to Heirs of Tailzie or Provision or the Intromission of these with the profits of Lands or Tiends befalling to Heirs of line will only infer Restitution or Reparation but will not infer a general passive Title making the partie lyable to all the Defunct's Debts 14. There are many Defenses which use to be proponed against this species of Behaviour As first it was an ordinary custom to shun this passive Title that the apparant Heir granted a Bond of purpose to adjudge the Defunct's Right upon the apparant Heirs Renounciation and then take Right to the Adjudication till the Lords by an Act of Sederunt Feb. 28. 1662. did declare that if apparant Heirs should in time coming take Right to any Appryzing or Adjudication of their Predecessors Rights for their own Debt and did 〈◊〉 thereby whether before or after expyring of the Legal they should be lyable as behaving as Heirs which hath always since been followed And therefore no Defense for such Rights will be sustained albeit it were a true Debt of the apparant Heirs and not a simulat Bond granted of designe to adjudge or apprise Neither is it a relevant Defense That the Lands or Teinds were appryzed or adjudged from the Defunct albeit Infeftment had followed thereupon if the heir apparant intromet without Right or Warrant from the Appryser or Adjudger within the Legal Feb. 21. 1663. Henrie Hamilton contra William Hamilton But it is a relevant Exception That the apparant heir's Intromission or possession was by Right from an Appryser or Adjudger though the Legal was not expired unless the Sum were fully satisfied by Intromission or otherways January 10. 1662. Barclay contra Laird of Cragievar The like though the apparant heir continued to possesse for some time after the Apprysing was satisfied by Intromission Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis Yea Intromission with the Rents of the Defunct's Land by his apparant heir waselided by a Tollerance from a Donatar of Recognition albeit not declared till after his Intromission the apparant heir paying the single value of his Intromission July 17. 1666. Thomas Ogilvie contra Lord Gray But a Tollerance from Apprysers after their Intromission was not found relevant July 11. 1671. Sr. George Maxvell contra Maxvel Yet the apparant heir's Intromission was elided because the Defunct's Rights were improven though after the Intromission March 22. 1628. Roderick Farquhar contra Campbel of Kingingcluch And an apparant heir's Intromission was elided by a colourable Title though not valid whereby the heir of a Marriage being entered and infeft as heir to her Mother yet her Infeftment being reduced and her Father being found Feer in a dubious provision of Conjunct-fee the heir so served was not found liable as behaving as heir to her Father but only quoad valorem of her Intromission July 12. 1671. Adam Gairns contra 〈◊〉 Sandielands But it was not elided because the apparant heir past by his Father and was infeft as heir to his Good-sire though his Father was infeft that colourable Title was not sustained the apparant heir being in mala fide having the Evidents in his hands November 23. 1671. Rorieson contra 〈◊〉 Yet Behaving as heir was not inferred by the heir apparant's intrometting with the Rents of Lands which his predecessor had disponed in trust to a third party for the behoofe of the apparant heir and whereupon the Intrusted was infeft January 14. 1662. Nicol contra Home of Plandergest But Intromission by the apparant heir was elided by a Disposition by a Defunct to the apparant Heir's Son his Oye though without