contra Strang. The like Feb. 5. 1623. Mark Ker con Scot of Hartwoodmires Hence it is that an Annualrent because it hath no retour distinct but it retoured Quod valetseipsum therefore if it be in Non-entry it is carried by the general Declarator and the Non-entry was found to carry the whole profite of the Annualrent by exception in a poinding of the Ground without any Declarator March 23. 1631. Somervel con Somervel of Drum Yea though the Annualrent be due by the Superiours consent yet it falls in Non-entry though it be due still personally by the personal obliegement where there is any In this Declarator the Superiour producing his Infeftment needs not instruct the Defender his Vassal and though the Lands in question be not expresly in the Superiours Infeftment but claimed by him as part and pertinent he needs not instruct the same to be so unless the Vassal disclaim him as Superiour in that part Spots Non-entry Lord Yester con his Vassals Neither needs he instruct that the Lands were void since the time libelled because that is a Negative and proves it self unless the Vassal instruct that it was full The 〈◊〉 of general Declarator is not personal against the Vassal to pay the 〈◊〉 Mails c. but is real against the ground of the Tenement for granting Letters to Poynd and Apprise and so the calling of an appearand Heir is sufficient Spots Escheat Balmiranoch contra his Vassals But if the appearand Heir be not called but a person notourly known to have no relation it is a relevant defence competent to any Party called though deriving no right from that Defunct Nicol. Non-entry Sir Mungo Murruy 22. And though Craig insinuateth that the Action is real and the ground may be poynded for the whole Duties yet posterior Decisions have upon good grounds cleared that as to these the Superior is but as the Master of the Ground and as he is in the case of Ward and therefore the Ground cannot be poynded Neither is any lyable but the intrometters with the Fruits Spots Non-entry Gray contra Murray Without this Declarator of Non-entry the Superior or his Donatar cannot enter in possession of this voyd Fie and though he possess he is comptable to the Vassal for the Mails and duties Hope Nonentry John Brown contra Mcculloch of Barholme Febr. 3. 1631. Thomas Ogilvy contra Murray of Halmyro But after Declarator of Non-entry is obtained the Superior may enter in possession any lawful way he pleaseth and may dispose of the Fruits and profites of the Tenements by himself or his donatar and as the proprietar might out-put and in-put Tenents therein and hath the full profites and duties thereof which may be pursued as other ordinary Actions though it useth to to be pursued under the name of Special Declarator which takes effect from the date of the Summonds whereupon the general Declarator proceeded because the Decreet of General Declarator is only for the by-gone Mails as aforesaid and therefore reacheth not after the date of the Summonds after which the whole Mails and duties are due not only in Ward holdings and blench but also in Fews As it was found that before general Declarator the Few-duty was only due so that after general Declarator the whole profites July 19. 1631. Earl of Kinghorn contra George Strang Julie 25. 1667. Mr. John Harper contra his Vassals Julie 11. 1672. Robert Fa contra Lord Balmiranoch and Laird of Powrie 23. Non-entry is excluded first by the entry of the Vassal and his Infeftment during the time thereof even though the same was granted by him who was Superior after his Predecessor was denuded four ages before which must be in respect the new Superiors right was not known as neither being Registrat nor any Intimation nor Action thereupon Hope Non-entry John Arthur contra Laird of Blebo And if the Vasal be Infeft upon a Charter from his predecessors to be holden of the Superior if the Superior Confirm it the Infeftment is valid and excludes the Non-entry from the date thereof and not from the date of the Confirmation being simple Hope Non-entry Bartoun and Harvie contra Laird of Delspro 2. Nonentry is excluded by Feus terces of Reliques Liferents of Husbands surviving their Wives by the courtesie of Scotland These are effectual by Law and are introduced without the Superiors consent It is excluded also by his express consent by Liferents or conjunct Infeftments holden of him though the Vassal may enter to the Fee yet the Liferent excludes the profites and therefore during the simple Liferent the Superior cannot obtain Declarator of Non-entry 3. By the Superiors con ent it is also excluded by precepts of clare constat which acknowledge the person who died last Vest and Seased as of Fie during whose time the Non-entry cannot be claimed And likewise by receiving the Vassal with a novo damus renouncing expresly Non-entry if it was granted by the Superior before the right was transmitted from him to the Donatar 5. It is excluded by the Superiors tacite or presumed consent by granting subsequent Infeftments for the space of 40. years March 19. 1629. Earl of Angus and Dowglas contra Earl of Annandale June 29. 1629. Sir Mungo Murray contra Laird of Inchmartine Hope Non-entry John Artâ—â—r contra Laird of Blebo for thereby it is presumed that the Non-entry is relinquished not being claimed nor reserved all that time Which Craig observes to have been found upon Infeftments continued by the space of 36. years but the best Term as being ordinary and known in Law is 40. years And this is not by reason of prescription which would only cut off profites of Non-entry preceeding the 40. years but this would take it away during and after the 40. years The like is very rationally observed by Craig to be inferred by three Subsequent Seasines having the same presumption as three subsequent Discharges have to infer exoneration of all bygones but these must be of three subsequent Heirs and not by receiving three singular Successors the Non-entry returning to the Vassal or his Heirs they cannot make use of it against the Subvassals especially if they be lyable to warrant the Subvassals as to Non-entry or by absolute warrandice generally for thereby the right to the Non-entry is jus superveniens authori accrescens successori but the Subvassals must pay their proportion of Expenses for the Gift But Non-entry is not excluded because it was gifted to the appearand Heir of a Superior of a Subvassal which Superior was obliedged in warrandice to his Subvassal seing he was not Heir spots Nonentry The like though the appearand Heir consented to the Subvassal before the Gift Laird of Craichlaw contra Gordown of Barnernie and Mackie Neither is it excluded by any base Infeftment not being Feu though confirmed by the Superior if it hold not of the Superior for such Confirmations import only a passing from Recognition As is shown in the Last Title concerning Confirmations But Fews
served without delay otherways they could never be served there being ever possibility of the Issue of Men. Yet if they should not be entered before the superveniency even though but in the Womb the same would take place but if the Ascendent be actually entered the Law affordeth no remedy Reversion or Restitution Neither can this difficultie be a Reason against the Succcession ofAscendents because the question is only betwixt them and their own Children and nothing operats in favour of their Brothers and Sisters or their Descendents As to the other Case in the instance proposed it seems the Succeession ought to have depended till the event of the lawful Issue of Marion Weir First because that had a determined time by the Course of Nature viz. the fifteth or fiftieth two year of her Age at which time the Issue of Women is repute extinct which is not so in the case of Men. Secondly in Tailzies upon Contracts and for onerous causes respect is to be had to the meaning and interest of the Parties contracters and in dubio pars mitior est sequenda And that sense is to be imbraced by which the provisions can have some effect and not that by which they can have none Whereby it may seem that it was Blackwood's meaning that the Succession of his own Natural Daughter should be substitute in the second member to the Heirs betwixt the Major and her and that while these were possibe his Heirs should have no place Otherways the second membet had been elusory For if by sailling the Heirs of the Major with the said Marion at the time of the said Major's Decease Marions Heirs by another lawful Husband should take place her other Heirs could never take place For she could not have another lawful Husband at the time of the Majors her first Husband's Death Yet the Reasons on the contrary are no lesse pregnant and that in this Case as in the Case of Heirs ascendent the Heirs nearest at the time of the Feer's Death should have Rights immediatly to Succeed because the Fee necessarly must belong to some Person and it cannot hang in the Air on a future possibility Which is a principle whereof mention and use hath been made frequently before Secondly if that were the meaning then at the time of the Major's Death the Lands were truely nullius and so as caduciary behoved to sall to the KING as ultimus Haeres But if it had been so exprest That no place should be to the Heirs of the Major's other Heirs till there were no possibility of Heirs of Marion Weir the defficulty seems the same that the Fee should be pendent and nullius It may be answered That even in that other Case the Major's other Heirs would succeed notwithstanding that provision which doth but resolve in aPersonalObligation to those Heirs to forebear Yet they were Heirs and if contrary the provision they should enter it would give interest to the Heirs of Marion Weir to compel the Major's Heirs having entered to denude themselves in their favour But there was no such thing in this Case And as to the Reasons upon the contrary though it may seem Black-wood's interest that the Heirs of his Natural Daughter should be in the second Place yet non fuit habilis modus to make the Fee pendent and nullius But to that which is the main Reason Otherways the second member behoved to be elusory it is answerd That it is not elusory because the most ordinary and hoped Case was That there should have been Heirs betwixt the Major and Marion who if they had died without Issue the Lands would have fallen to Marions Heirs by another lawful Husband and not to the Major's other Heirs So that the case which fell out that there was no Children procreat betwixt the Major and Marion was not feared and so not provided for as it oft-times fares in such cases Therefore we conceive it more probable that in all cases that Person who at the time of the Defunct's Death is in being born or unborn may be Heir and immediately enter so soon as by the birth it appears who may be Served There hath a later Case occurred and been determined on that occasion The late Earl of Leven tailzied his Estate and Dignitie to the Heirs Male of his Body Which failling to the eldest Heir Female without Division Which failling to the second Son of the Earl of Rothess Which failling to the second Son of the Lord Melvil who had Married the Earl of Levens Sister Which failling to the second Son of the Earl of Weemes who had married his Mother Leven left three Daughters after him who died all un-entered Rothess having no second Son David Melvil second Son to the Lord Melvil took a Brieve out of the Chancery to serve himself Heir of Tailzie to the Earl of Leven The Earl of Rothess took a Gift of the Non-entry in the name of Sr. William Bruce who raised an Advocation of the Brieve with a Declarator That while there was no hope of a second Son of the Earl of Rothess's Body David Melvil nor no Son of a subsequent Branch could be entered Or declaring That the Lands were in Non-entrie Both members of the said Declarator the Lords did sustain and stopped the Service albeit many inconveniences were represented thence arising As that there could be no active Title for pursuing the Rights of the Familie or for receiving Vassals nor any Accesse to the Estate passivè by Creditors But the Lords did reserve to the special Declarator how far the Non-entry would reach whether to the retoured Duties only or to the full Rents But many of the Lordswerc of opinion that David Melvil should enter as Heir of Tilzie Yet so that if the Chancelor had a second Son he or his Issue would succeed as Heir of Tailzie to David Melvil and neither his own Heirs of Line nor the Earl of Weemes's second Son Because at the time of David Melvils Death the Chancelor's second Son would be a nearer Heir of Tailzie to David than his own Son as being of a prior Branch of the Tailzie Feb. 22. 1677. Sr. William Bruce contra David Melvil But the Lords found that the Non-entrie by the special Declarator could not reach to the full Rents but only to the Retoured Duety Seing the apparent Heir was neither in culpa nor mora Which doth only infer the full Duties And therefore found the Donatar had right to the retoured Duties and that the remainder continued in haereditate jacente to be managed by the Lord Malvil as Curator datus bonis of the Estate of Leven by the King having power to manage the Affairs of that Estate as a Tutor or as if an Heir had been entred July 24. 1677. inter eosdem 51. It cometh oft-times to pass that through the unclear conception of Clauses of Provision it becomes dubious who is thereby constitut Feer and who Liferenter as is ordinary when Sums of
that God is to be obeyed by man 2. That man is a free creature having power to dispose of himself and of all things in so far as by his obedience to God he is not restrained 3. That this freedom of man is in his own power and may be restrained by his voluntar ingagements which he is bound to fulfil or take them up more Summarly The first principles of Right are Obedience Freedom and Ingagement There are also three prime Principles of the positive Law whose aim and terest is the profite and utility of man as the Natural Law is in equo so the positive Law is in bono or utili and upon those two legs doth Justice move in giving every man his Right If man had not fallen there had been no distinction betwixt bonum and equum nor had there been anything more profitable than the full following of the Natural Law but man being now depraved and wanting Justice or that willingness to give every man his Right and apt to fraud or force therefore in this estate it is profitable for him to quite something of that which by equity is his due for peace and quietness sake rather than to use compulsion and quarrelling in all things and to find out expedients and helps to make equity effectual And therefore to make up societies of men that they may mutually defend one another and procure to one another their Rights and also to set clear limits to every mans Property and to maintain Traffick and Commerce among themselves and with others so that the three Principles of Positive Law may be Society Property and Commerce The Principles of Equity are the efficient cause of Rights and Laws the Principles of Positive Law are the final causes or ends for which Laws are made and Rights constitute and ordered and all of them may aim at the maintenance flourishing and Peace of Society the security of Property and the freedom of Commerce and so the Narratives of Statutes do commonly bear the motives introductory towards some of these Heads 18. Obedience is that submission and sequacity of the mind and will of man to the Authority and Will of his Maker immediately oblieging without any tye upon him by himself intimate to him by the Law of Nature Light of Reason and the Conscience whereby man distinguisheth betwixt Right and Wrong betwixt what is Duty and what is not Duty hence do arise these Obligations upon man which are not by his own consent or ingagement nor by the Will of Man but by the Will of God and therefore these are fitly called Obediential Obligations The first and most general of these is To Love the Lord our God with all our heart and our Neighbour as our Selves upon which saith our Saviour hangeth all the Law and the Prophets Matth. 22. vers 40. which is a clear demonstration from his Mouth of the dependence of the Moral Law upon this Principle such are also the Obligations betwixt Husband and Wife Parents and Children and the Obligations of Restitution Reparation and Remuneration in all which we are ingaged not by our will and consent and such are the Obligations which the Civilians call Quasi ex contractu because they find them Obligatory and yet not by Contract and not adverting this their rise from Obedience reduce them to Contracts by a quast 19. Where Obedience ends there Freedom begins and man by Nature is Free in all things where this Obedience has not tyed him until he obliege himself It is a great mercy to man that God hath oblieged him only in a few necessar moral duties and has left him free in much more without any tye upon him as to the matter but with a liberty ad contradictoria that he may do or not do and ad contraria that he may do this or the contrair providing that whatsoever he do even where he is free be ordered and directed to the Glory of God It hath been the opinion of some both Learned and pious that there is nothing indifferent in actu exercito or as it is invested with the Circumstances but that then every thing is a duty or a sin and that because all things must be done to the Glory of God and to mutual edification from whence there is no exception and so are not free that we must make account of every idle word and that we are oblieged to try all things and to hold that which is best These Reasons indeed conclude that there is nothing free as to this contradiction either to be done to the Glory of God or not and to Edification and Use or not but do not conclude that there is duty or necessity in the matter of the Action it self of which either part of the contradiction may be chosen so that either part be useful and ordered to the Glory of God as saith the Apostle He that observeth a day observeth it to the Lord and he that observeth not doth so to the Lord. And likewife in that undenyable instance of Marriage wherein the Apostle debating of the conveniency to Marry or not to Marry doth conclude so that he that Marrieth doth well but he that Marrieth not doth better whereby both parts of the contradiction are approven and that which is less profitable is said to be well done Therefore there is a great difference betwixt duty which is necessar and wherein we are oblieged though we mistake or be wilfully ignorant by the very weight of the matter and absoluteness of the Command wherein the ordering of what is forbidden to Gods Glory will not justifie as we may not do evil that good may come of it as those who killed the Apostles were far from being justified though they thought they did God good service thereby These things are bona honesta mala inhonesta but matters of expediency are but bona utilia or mala inutilia and not inhonesta and therefore our duty in these is that which we conceive most to be for the Glory of God and good of our selves and others but if we do mistake and choose that which is less expedient for these ends we are free God seemeth to do with men as Princes do with their Ambassadors to whom they give some express instructions wherein they have no latitude in their Negotiations and for the rest to do as they shall judge most fit upon the place wherein if acting bona fide they mistake and do not that which is most fit they are not culpable So man being sent into the World to behold the Works of God and to Glorifie him for doing whereof he hath some Rules written in his Heart by the Law of Nature and in the Word of God and for the rest is allowed to do as he conceiveth most conducible thereto that whether heeat or drink or whatsoever else he do he do all to the glory of God It were a sad Rack to the Consciences of men if their errors and mistakes in the matters of
as a formal and a proportional Aliment as was found in the case of the Creditors of Mr. Andrew Hamiltoun contra Lady Carberry his Wife From this Communion of Goods it follows also that there is a Communion of Debts whereby the Husband is lyable for the Wifes Debt though it should both exceed her and his Moveables and the profit of the Wifes Land or of her other Heretable Rights but this was not found to hold in matter of wrong or Criminal things and so the Husband found not lyable for a Spuilzie or wrongous Intromission committed by his Wife without his knowledge or approbation during the Marriage February 2. 1628. Scot contra Katharine Banks and James Neil The same is observed by Spots Husband and Wife inter eosdem these were done Stante Matrimonio without the Husbands consent And yet the Husband found lyable for the damnage of a Milne demolished by his Wife as praeposita negotiis and by his Domestick Servants though he was out of the Countrey Spots Husband and Wife Laird Ludqhairn contra Earl of Marishal Neither was a Husband found lyable for the penalty of the contraveening the Act of a Kirk Session ut supra A Husband found lyable for his Interest for his Wifes Tutor Compts not only what she was lyable for during her Widouity but during the time of a former Husband his Successor being always first discust as to what was 〈◊〉 in his time March 28. 1629. Mathison contra Waristonn yea without the discussing of the Successors of the first Husband primo loco where the intromission was before both Marriages but prejudice to the Defender to pursue the Heirs of the first Husband as accords February 18. 1663. Dumbar of Hemprig contra Lord Frazer But a Husband was not found lyable for Furniture given by Merchants to his Wife without his consent she having gone to London without his Warrand except in so far as her ordinar expenses would have amounted to if she had stayed at home though her Husband had not Inhibite her July 6. 1677. John Allan contra Earl and Countess of Southesk After Inhibition against Wives the Husband is not lyable for any thing they Contract except what is furnished suitable to their quality and where the Husband cannot instruct that he sufficiently provided his Wife otherwayes July the 25. 1676. 〈◊〉 Campbel contra Laird of Abden The like was found at the same time concerning the Furniture of the Lady Monteith But this obliegement of the Husbands being only for his Interest 〈◊〉 Mariti the Debt it self doth not properly become his but only it may take effect against his Person and Goods during the Marriage but if that Interest were dissolved by his own or his Wifes death there will be no farther Process against him or his Heirs Nic. de reverentia Maritali Campbel contra Dumbar And though there was Litis contestation before the Wifes death the Husband was found free 〈◊〉 he was ordained by Interloqutor to find Caution to pay what should be decerned July 11. 1664. Dumbar of Hemprig contra Lord Frazer So likeways a Husband decerned with his Wife for his Interest she dying before execution he was free of the Debt December 28. 1665. Dam Rachel Burnet contra Lepers The like where the Husband was holden as confest upon refusing to give his Oath of Calumny February 26. 1668. George Graham contra Grizel Touris and Kelhead her Husband so likewise a Husband decerned with his Wife for his interest having died before execution his Successors were found free of thedebt Hope transferring Francis Kinloch contra Dumbar But the contrair was found where the Husband was denunced upon the Decreet and had sold his Wifes Portion of Land Ibidem Earl of Murray contra Lord St. Colmb The like where the Decreet against the Husband after his Wifes decease was only found effectual in so far as might extend to his Wifes third part of his Moveables February 7. 1629. Brown contra Dalmahoy And a Husband was found lyable for his Wifes Debt after her Death in so far as might be extended to the benefit of her Life-rent Duties resting at her Death February 1. 1662. Sir James Cuninghame against Thomas Dalmahoy And the Husband is always lyable for his Wifes Debt even after her Death in quantum est lucratus which cannot be understood to be by every Benefit or Tocher Marriage being an onerous Contract where a Tocher is given ad sustinenda onera Matrimonii and for the Wifes Provision by Law or Paction after the Mans Death And therefore he can only be accounted Lucratus when the benefit he hath by his Wife doth far exceed these onera December 23. 1665. Dam Rachel Burnet against Lepers And even in case he be Lucratus the Wifes Heretage must be first discust January 23. 1678. Agnes Wilkie contra Stuart and Morison A Husband being charged Summarily for his Interest upon a Decreet obtained against his Wife before the marriage and denunced thereupon yet not being undertaken by him or affecting his Goods before his death he was Liberat March 20. 1627. Knowes contra Kneiland The like though not only Horning was used against the Husband but Arrestment thereupon January 23. 1678. Agnes Wilkie contra Stuart and Morison But a Husband having given Bond of borrowed Money for his Wifes Furniture was found lyable therefore after her Death July 7. 1680. Slowan contra Lord Bargainie But that the Husbands Lands or Here table Rights will be lyable for his Wifes Debt there is neither Decision nor Ground for it these not being in Communione bonorum It is more dubious and for any thing I know undecided Whether the Heritable Debt of the Wife will affect the Husband Quoad mobilia but seing it is a Communion of Goods only moveable it should be also of Debts moveable though in communi forma as Tutors or Curators So Husbands will be decerned generally for their Interest yet with this difference that Tutors and Curators will be lyable in so far as they have the Pupils Means But I never heard that there was distinctions whether the Wifes Debt did exceed the third part of the Mans Moveables which is her Proportion of the same but indefinitely it hatheffect against the Husbands Person by Caption or his 〈◊〉 by Poynding But a Wifes Heretable Bonds become not her Husbands though uplifted by her or made moveable by a Charge during the Marriage seing she then re-imployed the Money for Annualrent February 〈◊〉 1679. Alexander Cockburn contra George Burn. 14. These are the Interests of the Man and Wife during the Marriage but before we come to their Interests after the dissolution thereof it is to be considered that by our Customes Donations between Man and Wife Stante Matrimonio are Revocable by the giver during Life which our Custome hath taken from the Civil Law where this Reason is rendered Ne unituo amore se spolient Thus a Donation betwixt a Man and his Wife was found anulled by the
July 4. 1667. Cuming of Alter contra Lumsdean This Hypothecation was found to give the Master of the Ground Right not only to detain but to bring back the Tennants Goods to the Ground de recenti December 11. 1672. William Crichtoun contra the Earl of 〈◊〉 but not ex intervallo February 9. 1679. Park contra Cockburn of Riselaw But this Hypothecation was not extended to an Appryzer without diligence or Possession July 29. 1675. Lord Panmoor contra Collistoun The like Hypothecation is competent to Teind-Masters for their Teinds even though the Heretor get a Rent for the whole or Profite of the Land Stock and Teind joyntly he is thereby lyable as Intromettor which was extended to Ministers for their Benefices or Stipends whereby they may have access to any Intrometter with the Teinds out of which the Stipend is modified not only for the Intrometters proportion of his Lands but in solidum for his whole Teind according to the value of his Intromission July 6. 1625. Mortoun contra Scot which held though the Intromettor had a Wodset of Stock and Teind whereby he had but his Annualrent March 21. 1633. Mr. Gilbert Key contra Mr. James Gray and Carmichael and this was found not only in Beneficed Ministers but in Stipendiaries who may either take them to the Tennents or their Masters Intrometting Spots Kirkmen Mr. Andrew Ker contra Gilchrist There is with us no Hypothecation in Lands for the Price or Money borrowed expresly to buy it Nicol. quae in fraudem Paterson contra Scarlet And the preference of Relicts for Implement of their Contracts of Marriage out of their Husbands Moveables in their hands to other Creditors is not a Hypothecation but a priviledge personal 63. Permutation or Excambion and Sale are so congenerous Contracts especially in our Customes that the same work will explain both by holding out in what they do agree and in what they differ Permutation or Exchange is a Contract whereby one thing is agreed to be given for another which if it be Money as it is current for Goods or Ware under which all things which can be bought are comprehended then its sale or emption and vendition These Contracts agree in this that both are perfected according to Law and our Custome by sole consent Naked pactions being now efficatious and though neither of the things exchanged be delivered the agreement is valid but if there be any latent vitiosity if it impede the use of the thing bought the Romans gave action em redhibitoriam to restore and annual the bargain or quanti minoris for making up the buyers Interest but if the seller was ignorant of the vitiosity or insufficiency he is not lyable to make it good unless he affirm it to be free of that or in general of any other faults but if he knew he is lyable if it were not showen to the buyer or of it self evident or known in which case the seller is only oblieged if he expresly paction our Custome alloweth making up of latent insufficiency of which before But these Contracts differ First in the materials which in sale must be Money as such and as a liquid price else if it be respected as a body or indefinite quantity as uncoyned or uncurrent Money or if it be bought by the weight or intrinsick value or if Money of one Countrey be exchanged with Money of another Countrey having no common Standard here is no sale but exchange Neither is exchange of Money loan because it is not as a liquid quantity as when so much English Money is given for the Floren Crown or Gilder and the remitting thereof The price must be also certain or which may be assertained as such a person gave or as shall be had from others by the seller for the like Goods or as such a person shall appoint which if exorbitant may be redacted ad arbitrium boni viri which seems to consist though the arbitriment be made the buyers Secondly Excambion and Sale differ mainly in this that in sale delivery of the Goods or things bought with the Obligation of Warrandice in case of eviction which is implyed in sale though not exprest is the implement of it on the sellers part even though the buyer know and make it appear that it were not the sellers yet he could demand no more but delivery and warrandice but contrarways the price must be made the Sellers and he may refuse it if he can shew anothers Right But in Excambion delivery must be made on either part and the thing delivered must become thereby the receivers else if it appear to be anothers it may be refused before delivery and if it be evicted after the Contract becomes void and the other party hath regress to what he gave in Excambion which followeth even singular Successors though it be not so expres and though the singular Successor was by Appryzing c. prior to the eviction November 21. 1623. Earl of Montrose contra Sir John Ker. And that without necessity to instruct that he who craves regress had right when he changed any further then by the Narrative of the Excambion which was of an old date in a Charter from the King bearing These Lands to have been Disponed in Excambion for the Defenders Lands and that the Excamber and his Heirs should have regress without mention of Assignays albeit the Pursuer was Assignay July 14. 1629. Laird of Wardess contra Laird of Balcomy where it was also found that no person needed to be cited to obtain regress but the present proprietar of the Lands Excambed and the Successor of the Contracter and no intervenient Authors July 2. 1629. inter eosdem 64. Sale may consist in all things which are not prohibite such as buying of Pleas by Members of the Colledge of Justice by the Act of Parliament which is understood of all persons having imployment about the Session as Advocats Clerks Writers c. Agents and their Servants wherein by Pleas are not understood things wherein there may be contraversie but wherein there is Process actually depending and called and not decerned July 6. 1625. Mowat contra Mcclane July 30. 1635. Sir Robert Richardson centra Cranstoun Riddel But the Prohibition doth not annul the Right or hinder Process but is a Ground whereupon deprivation may follow by the Act as in the former case June 5. 1611. Adam Cunninghame Advocat contra Maxwel of Drumcoltrane Sale being perfected and the thing delivered the property thereof becomes the buyers if it was the sellers and there is no dependence of it till the price be payed or secured as was in the Civil Law neither Hypothecation of it for the price Hope de empto John Parker contra Stevin Law Nic. quae in fraudem creditorum Paterson contra Scarlet In fale there may be Earnest interposed or Reversion granted or the Commissory Paction or Clause irritant adjected that if the price be not payed the sale shall be void or the same
is indirectly more then the ordinary Annualrent and so falls under the Act 1597. and on the other that improper Wodsetts are there exprest and proper Wodsetts seem ex proposito omitted and in proper Wodsetts all hazard lyes upon the Wodsetter Of setting the Land of dead poor and waste we shall leave this to every mans private judgement till publick judgement cast the ballance but all proper Wodsetts before 1661. are restricted to the Annualrent by the Act of Parliament 1661. cap. 62. If upon offer of security the Wodsetter will not quite possession he is countable from the offer as hath been often decided since that Act. There uses also in Wodsetts and Reversions to be included a condition to set the Wodsett Lands for such time to begin after redemption which if it be far within the true worth is Usurary and is declared so Parl. 1449. cap. 19. That Lands provided to be set for Tacks not near the true worth the same shall not be keeped yet such a Tack was sustained seing the Wodsetter had not his full Annualrent by reason of a Liferent reserved in the Wodsett and the Wodsetter was the Constituents Brother and so like to be for his Portion natural whereof the Tack was a part June 21. 1662. Laird of Polwart contra Home but in other cases such a Tack was found null by the said Act but not by the Act betwixt Debitor and Creditor February 15. 1666. my Lord Ley contra Porteous 75. This much for Usury of Annualrent by Contract or Pactions it is also due of the Law and by the obligation of recompense and reparation and in the Civil Law in all Contracts bonae fidei it is due ex mora by the delay of the Debitor which is understood after he be required for the same or that the Term is past nam dies interpellat pro homine and in other Contracts by litiscontestation but our custom hath little use of that distinction neither followeth it that rule but where Annualrent is not agreed first ordinarly it is not due till Horning be used against the Debitor and that by a special Statute 1621. cap. 20. Yea though the Horning was not registrat and so null as to Escheat it was found valid as to the Annualrent July 16. 1673. Isabel Ker contra Parochioners of Moramside but it was found not competent by way of special Charge in the Suspension of the principal Debt but ordinarly by ordinary action July 2. 1629. Purveyance contra Laird of Craigie where Dury his opinion is That if the Charger had raised Horning upon the Act of Parliament it would have been sustained summarly and is now ordinarly sustained summarly by a special Charge when the sum is charged for or suspended but it being once due it not only continueth during the life of the person denounced but still thereafter till payment July 4. 1642. Huntley contra Heirs of Mr. John Manson 2. Annualrent provided by a Bond for one year though it express not for all years thereafter yet continueth due till payment Decemb. 2. 1628. Blair contra Ramsay The like where one Term was only in the Bond Spots usury Keith contra Bruce and where Annualrent was promised for a time by a Letter it was found still due till payment January 13. 1669. George Home contra Seaton of Menzies 3. It is due by use of payment only without express paction March 4. 1628. Forrester contra Clerk 4. Annualrent is ordained to be due to Cautioners by their Principals for sums payed by them as Cautioners by the Clause of relief as being damange and interest though the Bond bear no Annualrent by Statute of Session Decemb. 21. 1620. Hope usury Torry contra Dowhill Dec. 4. 1629. 〈◊〉 contra Johnstoun where the Clause of relief bare only to relieve the Cautioners of his Caution and not of all damage The like though there was no further distress against the Cautioner but registration January 24. 1627. I. Wauchton contra L. of Innerweek and this was extended to co-principals having Clause of mutual relief of cost skaith c. Novemb. 15. 1627. Black of Largo contra William Dick. 5. Annualrent is due without paction by Tutors and Curators to their Pupils of which formerly in the Obligations betwixt them 6. Annualrent was found due without paction by an Heir-male for the Portion of the Heir-female though not required for many years and that still from the term of payment July 5. 1610. Calhound contra L. of Luss. The like by a husband who was oblieged to his wife for the Annualrent of the Tocher payable by the Father though the Tocher was never payed Hope Husband and Wife Baird contra Gordoun Spots Usury Mr. John Skeen contra Mr. John Hart. 7. Annualrent was found due for the price of Lands possest by the buyer without paction Hope Usury Mr. James Stirling contra Mr. David Ogilvy February 17. 1624. Dury of that ilk contra Lord Ramsay the like though the delay of payment was not the Debitors sault November 14. 1628. Cuming contra Cuming Spots Usury Home contra Laird Rentoun Annualrent was not found due without paction for a sum lent to an old man on condition that if he died without Heirs the Creditor should become the Debitors Heir and yet he having Heirs Annualrent was not found due Decemb. 11. 1662. George Logie contra Logie But the Lords do sometimes allow Annualrent or an equivalent expense among Merchants and they did so in a Provision by a Father to his natural Daughter payable at her Marriage which was found so favourable not to hasten her to marry that Annualrent was allowed her seing the condition was in her power June 25. 1664. Margaret Inglis contra Thomas Inglis The Romans allowed Annual till it equalled the Principal but no further but our custom hath no such restriction Yet we restrict the English double Bonds to the single Sums and Annualrent thereof but no further then till it be equivalent to the Principal seing by the tenor of such Bonds it appears the meaning of the Parties that no more should be demanded in any case January 2. 1679. Sir Alexander Frazer and Leyes Burnet contra Sir James Hamiltoun Annual upon Annual is condemned of all when it is comprehended in the first paction but it is ordinar by posterior Contracts to accumulate Annualrents and make it a Principal and so both that which was first Principal and that which was once Annual bears Annual so also Annual by vertue of the Act of Parliament if Decreet follow thereupon and Horning will bear Annual seing there is no limitation but this will not be extended to Annuals in time coming after the Horning and last Annualrent payed by a Cautioner by the said Statute of Session will bear Annual because to him it is a Principals Annualrent was also found due without paction for money expended by the Custom of Bourdeaux Decemb. 8. 1677. Antonieta Peron contra Morison To return to Location all things may
be given and expired which in all Decreets proceeding upon Citation requires fifteen days In which address may bemade to the Lords Thirdly Decreets of Barons have no Execution by Horning which goeth of course upon the Decreets Precepts and Executions of other Judges ordinary so that all the Execution upon their Sentences is only poinding or corporal Punishment As to which if there be any process for Capital Punishment the Lords will very easily grant Advocation as they do advocat Causes from Inferiour Judges not only upon Incompotency but upon Intricacy and Importance So there being nothing more Important then the life of Man they would easily advocat such Processe wherein Barons should not proceed summarily to Execution But both they and other Inferiour Judges ordinary should after Sentence at least abide Terms of Law by the space of fifteen days that the Lords may give remeed by Advocation or Suspension of Execution For though the Lords have not Criminal Jurisdiction they do ordinarly advocat and by the same reason may suspend Criminal Processe to the effect the same may be remitted to competent and unsuspect Judges so that if there were any doubtfulness in the case the Lords would remit the Cause to the Justices Fourthly The Courts of Barons or Free-holders are not Courts of record in which writes use to be registrat 64. As the Courts of Barons and Free-holders have these Restrictions more then the Inferiour Judges so they have this advantage ordinarly that all the Profits and Issues of their Courts belong to themselves whereas Sheriffs Stewarts and Baliffes of Royalty are countable to the King seeing these are the Kings Courts But Baliffes of Regality are not countable because though they be the Kings Courts yet the King hath gifted the Profites of the Court by the Erection of the Regality If then an Infeftment contain Courts the Profites thereof are carried therewith though not exprest but ordinarly they bear cum curiis earumque exitibus And therefore the Amerciaments of Courts or there other Issues or there Priviledge on the breakers of Arreeistments loosing their Tacks to their Masters within their Barronies are not comprehended within publick Confiscations reserved to the King 65. Fortalices are also inter regalia and are not carried by the Fee unless exprest or at least the Lands be erected in Barrony By Fortalices are understood all Strengths built for publick Defence whether that appear by common Fame or Reputation such as all the Kings Castles whereof many are now in privat hands as Proprietars or Heretable Keepers thereof or Constables of the same such are the Castles of Dunstafnage Carrick Skipnes and others belonging to the Earl of Argyl the Constabulary of Forfar belonging to the Earl of Strathmore the Constabulary of Dundie now belonging to the Lord Hattoun And when these Castles are disponed either in Property or custody the Infeftments thereof carry therewith not only the Bounds of the Castle but the Dependencies thereof as Gardens Orchards Parkes Meadows and other ground possest by the King or Keeper for the use of the Castle and all Rents Annuities Jurisdictions and Priviledges thereunto belonging which may be instructed by their Charters their Court-books or other Writes or Instruments and even by Witnesses proving long Possession albeit the Infeftments of Constabulary bear only in general Officium constabularii cum feodis divoriis ejusdem which was found to extend to the proclaiming and riding of Fairs anterior to the Constitution of the Office and exercing Criminal Jurisdiction in the Town where the Fairs were held during these Fairs but not to extend to other Fairs recently granted by the King or to Jurisdiction at other times July 18. 1676. Earl of Kinghorn contra Town of Forfar The like was done in the Process betwixt Hattoun and the Town of Dundie in anno 1679. wherein multitudes of Witnesses were examined upon either part And the Emoluments Priviledges and Jurisdiction of the Constabulary were decerned according to the Probation and Particularly 20 shillings Sterling yearly for which the Town of Dundie counted in Exchequer as belonging to the Constable which was found to belong to the Office albeit there was a Discharge thereof granted to the Town by Scrymzour Constable of Dundie which was not found effectual against Hattoun his singular Successor in the Office by Apprysing December 9. 1679. inter eosdem 66. The Case is more doubtful as to other Fortalices which are not repute to have been the Kings Castles Craig's opinion is that all strong holds are presumed to have been builded for publick Defence and not for privat Safetie wherein turris pinnata is comprehended having Turrets or Rounds upon the Angles from whence Shot may be directed alongst all the Walls And therefore much more may Castles with Bartizens or Bands that is strong and high Walls surrounding the Castle Or if the Castle be built upon a place naturally strong which may give suspition to the King to be an occasion of Rebellion and not to be patent and accessible at his pleasure and most of all if there were regular Fortifications of Stone or Earth Certainly such Fortresses or Fortifications whereby places are made of that strength which is accustomed to secure against publick Enemies in War may not be builded without the King's Warrand and if otherwise built may be demolished and the Builder punished but long possession presumes a Warrand And as such Fortalices may be presumed to have been at first the Kings from the very Inspection of the Fortalice and its proper use so long Possession may take off that Presumption and that they have been built mainly for privat use in times of trouble with the Kings consent But we need not insist in these Questions seeing Towrs and Fortalices do now pass in course in Charters Yet though these were exprest if it appear the Fortress hath belonged to the King and can be comprehended in the annexed Property the Right of them will only resolve into an heretable keeping so that the King in time of War or Insurrections may make use of such strong holds and put Garisons therein seeing keeping doth not exclude the Kings own necessary use neither will the expressing of Fortalices generally impower the Vassal to build such Strengths as are proper for publick War because the Clause can only import such Fortalices as then were built But I see no ground to extend Fortalices to all houses with Batlements or with Turrets or Rounds which can only infer private safety against Robbers Plunderers or flying Parties but nothing proper for a Seige or publick Defence of a Kingdom and therefore these may pass as Houses or Pertinents And as to that ground Craig adduces That it is Treason to hold any Fortalice against the King or to deny Him or these commissioned by Him access by armed force and yet delivery of any other privat Right may be refused to the King without hazard Whence he inferreth that the King must have greater Right and Interest in
Earl of Argile as Donatar to his Fathers forefaulture seing the King had done no deed to accept Mcleod as his immediat Vassal but that he was Infeft by Precepts out of the Chanclery passing of course 6. Superiours nor their donatars need not instruct the Superiours Right but the Vassal must acknowledge it or disclaim him upon his peril so it was found in the Casuality of Marriage February 25. 1662. Arbuthnet contra Keiths which will not hold if the Right of Superiority be newly acquired and no Infeftment given to the Vassal or his Predecessors by vertue thereof The Superiours Infeftment gives him interest to pursue Reductions and Improbations against all parties even against his own Vassals who will be forced to produce their rights under the Certification to be declared null or false and feigned though when they are produced they may defend them 7. Superiority carrieth a right to the Service and Duty contained in the Vassals reddendo and that not only personally against the Vassal upon any personal Obligation or Contract in Write but also by vertue of Intromission in meddling with the Fruits and Profits of the Land for all such intromettors may be pursued and distressed personally for the Duties contained in the reddendo which being granted to Masters of the Ground for their Tack Duty against Tennents and all intromettors with the rents is much more competent to the Superiour for his Feu-duty or other Service in kind how far this will be extended to Blensh-duty hath been shown in the former Title And as to Services which are annual as winning and leading of Peats c. these are not due if they be not required yearly in due time whether they be due by Vassals to the Superiour or Tennents to their Master January penult 1624. Carnowsie contra Keith So Service of Harrage and Carriage in a Feu-duty was found not due but when demanded within the year June 27. 1662. Mr. David Watson contra Mr. James Elleis 8. But also the Superiority carrieth the right to the duty of the reddendo really against the ground of the Fee for which he hath Action of Poinding of the Ground against the Vassal and all singular Successors to him whereby he may appryze the Goods upon the Ground or the Ground-right and Property of the Lands the saids Duties being liquidat upon repayment whereof the Lands are redeemable as in other Appryzings 9. Superiority carrieth the Right of Jurisdiction over the Vassals Lands and Inhabitants thereof if the same be granted to the Superiour in his own Infeftment either implicitely as being a Barrony Lordship or Earldom or expresly having the power of Courts and their Issues and though the Superiour grant the same to the Vassal yet that is not exclusive of his own right but cumulative therewith how far Superiority carrieth the right of Thirlage of the Vassals Lands to their Superiours Milns when the Vassals have not granted to them the priviledge of Milns and Multars will appear amongst Servitudes of which hereafter 10. Superiority carries all the Casualities thereof requiring Declarator to Heirs and singular Successors hoc ipso that they have the Superiority established in their person and do not fall to the Executors of the Superiour as to bygones before his death unless gifted or liquidat by Sentence March 5. 1611. Dowglas contra Captain Crawford February 19. 1635. Cunninghame contra Stuart July 11. 1673. Robert Fa contra Lord Balmerino and Laird of Pourie But Feu-duties or any Casuality may be separat from the Superiority by Sentence or Assignation and therefore a Disposition of the Superiority was found to imply an Assignation to the Feu-duties bygone which being to the vassal himself needed no intimation and was valid against a singular Successor Infeft in the Lands in Superiority December 14. 1676. Earl of Argile contra Lord Mcdonald 11. A Superiour of Kirk-lands pursuing his vassal for his reddendo was not excluded till he instructed that he consented to the surrender conform to the Act of Parliament 1633. annexing the Superiority of Kirk-lands to the Crown reserving the Feu-duties to the Lords of Erection who consented to the surrender which was presumed in possessorio June 27. 1662. Mr. David Watson contra Mr. James Elleis 12. Superiours are oblieged to receive Appryzers or Adjudgers for a years Duty albeit the Superiour alledge a better Right then the Appryzer but the Infeftment to bear salvo jure cujuslibet suo July 4. 1667. George Shein contra James Chrystie Yet a Superiour having received an Appryzer was not found excluded from any right to the Property though he made no reservation thereof seing his receiving was necessary July 19. 1664. Hospital of Glasgow contra Robert Campbel But a Superiour being charged to receive an Adjudger was found to have his option either to receive him for a years Rent or to pay the sum adjudged for getting Assignation to the Adjudication being redeemable by the Vassal from the Superiour and without any years Entry to be payed at Redemption seing the Vassal was not changed as is provided Par. 1439. cap. 36. June 10. 1671. Sir Francis Scot of Thirlestain contra Lord Drumlanerk 13. And a Superiour is also oblieged to receive a Donatar upon the Kings Presentation gratis without present payment of the Non-entry duties till declarator and if he refuse he loses his Superiority during his Life June 25. 1680. Laird of Blair contra Lord Montgomerie 14. A Superiour must also receive his Sub-vassal whom his immediat Vassal refused to Enter without further instructing of the Vassals Right but by receipt of the Feu-duty by him as Superiour wherein the mediat Superiour supplet vicem of the immediat salvo jure June 28. 1672. Menzies contra Laird of 〈◊〉 Yet a Superiour cannot exclude an Appryzer or Adjudger within the legal from the Rent of the 〈◊〉 till he pay a years rent December 3. 1672. Mr. Hendry Hay contra Earlstoun 15. And if a Superiour or any to his behove take the gift of his own Ward he was found to have no interest to extend it further against his Vissal Infeft with absolute warrandice then to a proportional part of the Composition and Expenses February 15. 1665. Boyd of Penkil cintra Tennents of Carslooth The like where the Ward had fallen after the Vassals Right for if it had fallen before he could have nothing December 1. 1676. Lord Lindsay contra Bargallon 16. Superiours are not oblieged to receive upon Resignation or by Confirmation and having accepted Resignation it did not exclude the marriage of the Resigners Heir there being no Infeftment upon the Resignation before the Resigners death November 14. 1677. Sir William Purves contra Strachan of Kinadie 17. Superiority falling to more Persons doth not obliege the Vassal to take Infeftment of them all but if heirs portioners of the eldest July 30. 1678. Lady Lus contra Inglis And by the same reason if the Superiority fall to many singular Successors by Appryzing or otherways the Vassal
exclude Non-entry while they were allowed by the Acts of Parliament as there is also shown neither is it excluded by Tacts set by the Vassal which though they stand as real Rights against Purchasers by Statute yet have no effect against Superiors in prejudice of their proper Casualities Neither is it elided by Charters or Precepts granted by the Superior though containing warrandice till Infeftment thereupon March 20. 1630. John Hay contra Laird of Achnames Neither was it excluded by Apprysing and Charge thereupon without offer of a years Rent of the Land or Annualrent of the Money Feb. 3. 1681. Hendry Keir contra Hendryson Neither is it excluded because the Vassal was not in mora being hindred by a Question of Bastardry against him Spots Non-entry 〈…〉 contra Naiper of Wrightshouses Nor doth the Vassals Minority stop Non-entry of Lands not being Ward nor restore the Minor as Lesed For as hath been now shown It is not the negligence of the Vassal but the nature of the right that infers Non-entry yet there is no doubt if it be by the Superiors fault it will be a personal Exclusion against him Non-entry is most favourable when extended as to the retoured duties But as to the full Rents it is capable of many other exceptions and doth not alwayes run from the Citation in the General Declarator as if a Superior raise his Declarator and also Reduction of the Vassals Seasine though he reduce the Seasine he will not have the full Rents till the Decreet of Reduction and Declarator Novemb. 26 1672. Earl of Argyle contra Laird of Macleud yea if the Superior do not insist but only use Citation which may be at the Vassals dwelling house and never come to knowledge or the Vassal being a Pupil without any Tutor it is not like the Lords would sustain the whole Duties from the Citation but from the time the Vassal becomes contumacious And Queensberry having interposed Kelhead betwixt him and his Vassals who thereupon pursued Declarator of Non-entry though the Infeftment was found null yet the Disposition was found to carry a Gift to the Casualities of the Superiority and the Vassals were only found lyable for the Rent after the Interloquitor sustaining the disposition as a gift of Non-entry and where a Tailzie was found to exclude a second Branch so long as there was hope of a former Branch the Lands were found in Non-entry as to the retoured Mail but not as to the full Rent seing the Heir did not forbear to enter through wilfulness but of necessity Julie 24. 1677. Lord Melvil and David Melvil his Son contra Sir William Bruce And where a Singular Successor to the Superior pursued Non-entry it was not sustained till he produced his progress from the acknowledged Superior the full duties were not found due from the Citation Julie 18. 1680. Earl of Queensberry contra Irwin of Cove And Craig relates that where the Defunct died in Battle for his Superior Non-entry should have no place We shall not here speak of common exceptions which extinguish all Rights as prescription homologation or the priviledge of these who are absent reipublicae causa As to the Question whether Non-entry Subsequent to Ward whereby the Superior or his Donatar is in possession requireth any Declarator Craig and Skeen upon the word Non-entry are for the negative and since Had. and Durie observe March 23. 1622. Lesly contra Pitcaple that the Lords found that where the Superior pursued both for the Ward and subsequent Non-entry that he or his Donatars not being in possession by the Ward behoved to declare the Non-entry which would only carry the retoured Mails till Declarator The next Casuality of the Superiority is the releef due by the Vassal to his Superior for his entering him in the Fie as the lawfull successor of the Vassal And though relees be only considerable in Ward-holdings and uses to be subjoyned to Ward yet all Fies which require Renovation are lyable to releef and therefore Releef is here immediatly subjoyned to Non-entry 26. Releef is generally treated upon by the Fewdists The Original whereof Cujace ascribeth to the constitution of the Emperor Leo extant in the Novels bearing it to be the custom of several places that the superior should have that years Rent in which he receives a new Vassal in his Clientel which therefore by most of the Feudal Customs is extended to the singular Successors of the Vassal who in some places pay for their Entry the fifth of the price of the Fie and a fifth of that fifth whereby if the price were 100. Crowns the composition for the Entry would be 24. Crowns 27. But by the Customs of England and France the Heir of the Vassal if he be Minor payes no releef but he and his Fie are in the hands of the Superior as in Ward or Custody whereby the Superior hath the whole profites more then is fit for the Education and Intertainment of the Minor Valsal which ceaseth with his Majority and there is no releef due But if the Vassals Heir at his Death be Major his Fie is lyable to his Superior for releef which distinction is mentioned in the English Magna Charta the quantity of the releef by Heirs in England is in Ward-holdings or Military Fies 100. Pounds Sterling for an Earldome 100. Merks for a Baronry and 100. Shillings for any other Military Fie which is oblieged to maintain one Souldier And if the Fie be less and lyable only for a share of the entertainment of a Souldier it is lyable Proportionally Relief by the custom of France is for a Barrony 100. Franks and for any other Military Fie 15. But if it answer not to the entertainment of one Souldier it payes for every Aiker 12. Deniers but if it be not a Military Fie but that which the English calls Sockage the Reddendo whereof is not Military service but some other payment or performance which is doubled the first year after the death of the Vassal the one half thereof is the releef which is a real burden for which the Superior may Poynd or distrenzie all goods upon the ground But as to singular Successors the most ancient Feudal Customs making them only to descend to the Issue of the first Vassal whose Collaterals had no right but were like our kindly Tenents by the propinquity of blood yet by the favour of the Superior they were oftimes admitted in the lie and were only lyable for relief If the Superior did receive a stranger upon the resignation of his Vassal he was to pay a relief which in some places was the fiftieth part of the Price And by the Custom of France it is the thirteenth part From the Original of Relief the reason of its name may be conjectured and these who appropriat it to Ward-holdings interpret it to be called relief from redeeming or Relieving the Fie out of the hands of the Superior But relief being a general Feudal name and many Nations not allowing the
old it was otherways and that the Superiour had the Ward with the burden of intertaining the Heir and with the paying of the Annualrents of his Heretable debts and that the Custom of Wards in France is such Yet there is no appearance that the custom hath ever been so with us since the reign of King Malcolm who gave out all his Lands to his Subjects and reserved only to himself for sustaining of the Royal Dignity the Ward and Marriage of his Vassals which at that time were very considerable when most of all the Lands in Scotland were holden by simple Ward but since a great part hath been changed into blensh or Taxed Ward or given out in Burgage and Mortifications or in Feues The Casuality of Ward may be enjoyed immediatly by the Superiour but is more ordinarly gifted to Donatars not only by the King but by other Superiours which Donatars may do whatsoever the Superiour himself might because they Act by his Right and are in effect his Assigneys So that if gifts be granted to more Donatars the first Intimation or Diligence will be preferred Gifts of Ward and Non-entry were accustomed of old to be granted by the Exchequer together bearing not only for bygones but for time coming till the Entry of the 〈◊〉 Heir or Heirs And albeit Gifts of Ward run still in the same Style yet by the Acts and Customs of Exchequer Ward and Non-entry are several Casualities and pass by several Gifts and notwithstanding the foresaid Clause the Gift of Ward reacheth only during the time of the Ward and three terms thereafter if the Lands run in Non-entry but ward was not found to give right to three Terms full Rent here the Donatar was not in Possession during the Ward Novemb. 2. 1680. Laird of Dun contra Viscount of Arbuthnet And albeit the Gift contain relief yet that Casuality as Hope observeth is always demanded by the Exchequer and counted for by the Sheriff being but a small duty of the retoured mail as the gratuity to the Superiour at the Vassals Entry In that same place he saith that under the Gift of a simple Ward is not comprehended Taxed Ward which being Taxed is as a Feu duty and rather as a part of the Kings ordinar Revenue then a Casuality Upon which ground the Earl of Kinghorn as Tutor to the Earl of Errol having gotten a gift of his Ward without mention of Taxt-ward he was necessitat again to take a new Gift for the Taxt-ward and gave a considerable Composition and did not adventure to put the matter to debate before the Lords of Session whether his first Gift would have been extended to Taxt-ward or not 37. The fourth Casuality of Superiority is the interest of Superiours in the Marriage of their Ward-vassals which doth arise from the Nature of the Feudal Contract in proper Fees whereby the Vassal oweth the Superiour faithfulness and Military Service and is thereby in his Clientele which could Import no more then that he should not Contract affinity by Marriage with any that were in enmity with his Superiour for thereby his Fidelity might become suspect which would take place not only in the first Marriage of the Vassal but as to any subsequent Marriage though he had Succession by a former Marriage and might take place in the Marriage of the Vassals eldest Son even in his life and might be considered as an Act of Ingratitude if the enmity betwixt the Superiour and the Family with whom the Vassal was to marry were known to him and might import a breach of his Fidelity if the Superiour did prohibit him to match with that Family which was in open and known enmity to him The Superiour might also have Interest in his Vassals Marriage when he had the custody of his Person as a Tutorial Trust for the good of the Vassal 38. But Time and Custom hath given Superiours a far different interest in the Marriage of their Vassals here and in England of which there is no mention in the common Feudal Customs nor is it in use in other Kingdoms for albeit by the Custom of France female Heirs in the Kings Custody must require the consent of the King or his Procurator yet the not doing so infers not the value of their Marriage as in England and with us it is become a power in the Superiour to exact out of his Vassals Fee the value of a Tocher suitable to the whole means and Estate of the Vassal if he Marry without his consent and the double value being solemnly required to Marry a suitable person without disparagement if he doth not obey but Marry another this Custom was introduced in England in the Reign of King Henry the third It is commonly held to have been introduced in Scotland in the Reign of King Malcolm the second who gave out all his Lands in Scotland in Fee and reserved to himself for the ordinar support of the Royal Dignity the Ward and Marriage of his Vassals whence the marriage was designed as a profit to the Crown and by example was derived to the Subjects who giving their Lands Ward were understood to give the same with the like Priviledge of the value of their Vassals Marriage which doth never take effect till the Vassal be Major for during his Minority his Superiour or his Donatar have the full profites of his Fee over and above the expenses of his Education and mentainance according to the Vassals quality if he have no other Estate which is not Ward the profits whereof may be sufficient to Entertain and Educate him or in so far as these profits come short for no Minor is oblieged to spend his Stock upon his mentainance nor may his Tutors or Curators securely do the same Therefore the true Interest of Superiours in their Vassals Marriage should now be the Tocher suitable to the Vassals Estate Marrying after his Predecessours death if he had not been Married before for the value of the Marriage being due but once and not for every Marriage if the first Marriage fall not after the Defunct Vassals death it should not be demanded nor any account called for of the profite of the Marriage falling before he could be Vassal though it hath been claimed where the Vassal was Widow at his Predecessors death having no Children of the former Marriage but it came not to be determined by the Session though it was demanded by the Commissioners of the Thesaury from Sir Robert Barcley of Pearstoun And albeit the Vassal never marry yet if he be solemnly required by Instrument to Marry a suitable Person without disparagement if he live to his majority though he never Marry his Fee will be lyable to the value of his Marriage albeit he willingly ly out uninfeft not by the Superiours fault but his own for though Creditors have a remeid by a Charge to enter Heir within fourty dayes with certification that all execution shall pass as if the debitor were Entered yet there
is no Reason or Practice to extend the same to Superiours albeit Craig think that it may be so extended and that the Marriage is not due unless by that means the Heir required to Marry be Entered or at least charged to Enter but by a solemn debate and Decision betwixt French of Frenchland and Thorniedykes upon the 11. of July 1622. the Lords found that the Marriage was due if the appearand Heir became Marriagable though dying in minority when they were not Entered Heirs But in that case the Heirs were Female and it does not appear whether they were past fourteen at which time their Ward ceasseth and they are in the same case as men when they pass twenty one neither doth it appear whether they were required to marry or not and therefore we shall not thence conclude that a marriage is due by the appearand Heirs being marriagable though dying uninfeft and in minority against which Craigs opinion is very positive l. 2. Dieges Yet from this Decision and from that betwixt Dickson of Headrig and the Kings Donatar decided November 14. 1635. we may conclude that there may be more marriages exacted by the death of one Ward-vassal having several appearand Heirs of which none were Entered and it being debated whether the marriage would be due though the Vassal died unmarried and unrequired to marry in the case of Archibald Campbel contra Laird of Mcnaghtoun Decem. 3. 1677. the Lords proceeded no further but did only determine that the single value is not penal but favourable 39. And therefore the single value of the Vassals marriage needs not be pursued penally because the Vassal married without the Superiours consent or being required and living till majority though not Entered by his fault did not marry but may be pursued as a Casuality and profite due to the Superiour for the Vassals marriage marrying after his Predecessors death Or being required to marry did live unmarried past his majority or married without his Superiours consent by which all the unhandsome formalities accustomed to reach a double value might be abated for the single value would be due if the Vassal live to majority and never marry and if he did marry without the Superiours consent the double would be due and for obtaining the Superiours consent it would be necessarly consequent that the Vassal should confer with the Superiour and propose to him whom he inclined to marry and if the Superiour consented not thereto he should condescend upon his reasons and offer another fitter person 40. All which being exprest by Instrument the Session would judge who were in the right and would be very favourable in the single value but would not sustain the double if the Superiour did without reason refuse his consent without necessity of the ordinary form of Requisition offering a particular person and opportunity of a visit and conference and a day and place to marry not being within thirty days and a second Instrument bringing that person to the place of conference first to offer her consent so that if the Vassal at the first fight did demand of her if she would marry him she behoved immodestly enough to consent without acquaintance without consideration or affections and then openly to appear at the Church and offer her self again which no fit and modest person would be induced to do and therefore these are meer formalities without any design to offer a suitable person so that there is no reason the Superiour should lose the single value for any defect in these formalities nor that he should have the double value for using the same without any just design or desire of acceptance and therefore the double value hath been seldom found due and so takes no place without the solemnity of an Instrument of Requisition by a Nottar observing all the formalities of producing the Donatars Gift if he do personally require and both the Gift and Procuratory if he require it by his Procurator and the offering of a person by name and an unsuspected place for view and conference and another day and Church for solemnizing the marriage and at that day a new Instrument presenting the Woman and waiting for the Vassal till one of the Clock wherein there is the greatest exactness observed as to the double value but there was no necessity found to make the requisition to Curators whose consent is not required to the marriage of Minors as was found in the case of the Heirs of Thorniedike But the double value was not found due where the Superiour or his Donatar appeared not at the day appointed for interview Hope marriage Earl of Angus contra Hugh Nisbit Nor where the Instrument of requisition mentioned not the Gift produced though it was offered to be proven by witnesses that it was truly produced albeit it was not called for March 8. 1627. Earl of Rothes contra Balsour Hope marriage Drummond contra Laird of Manner The double value was not sustained because the place appointed for interview was the Donatars Lodging July 3. 1622. French contra Heirs of Thorniedike Neither was it found effectual till the Heir married another and after the Ward was ended December 20. 1609. and January 27. 1610. Laird of Kilburnie contra Heretrix of Fairlie Neither was the double value found due where the Heir remained several years marriageable and the Requisition was made after the Heir was aggreed to be married with another and the day of the marriage was set albeit the Contract of marriage was not subscribed separatim because the woman offered was agreed in marriage with another man and both were found probable by the communers Feb 22 1678. Drummond of Machanie contra Stuart of Innernytie And even when the double value is sustained it makes but a small addition ordinarly to the single value which is two or three years free Rent or Annualrent deducing Liferents or Annualrents real or personal of the vassals hail Estate and the double value adds ordinarly but a fourth 41. The single value is due though the vassal was married before his Predecessors death being by a fraudulent precipitation the Predecessor being then moribundus and dying within some few days and no previous Treaty or Proclamation February 20. 1677. Lord Thesaurer and Advocat contra Lord Colvil There are several cases to the same purpose observed by Sir John Skeen 42. There is no regard had in the modification of the value of the marriages what Tocher the vassal actually got or any personal consideration but only an ordinary Tocher for such an Estate it was modified to two years and an half in the case of Innernytie and to two years in the case of Zeaman of Dryburgh July 13. and 28. 1680. in which case the vassals Rent and Annualrent being referred to his oath he did depone thereupon Qualificate that he had so much debt and such burdens which was not sustained by way of quality without Probation Neither is the marriage of Heirs Female esteemed the worth
removed therein and their Possession needs not again be proven and their defences hindering the pursuer to obtain Possession would not be sufficient unless they offer to prove the pursuer himself was in Possession or others by his warrand June 19. 1610. Hector Monroe contra Laird of Balnagoun Neither will any other thing but real obedience by giving or at least offering the void Possession take them away though the Land lye waste But violent profites were also found competent against these who were not warned against whom Decreet of removing was not obtained to wit against any who suspended the Decreet and thereby hindered the defenders attaining Possession Hope Mails and Duties Ker of Fairnieherst contra Turnbul Yea a party obtaining Possession by a Decreet of removing after Litiscontestation in the reduction of the Decreet was found a violent Possessor and lyable to violent profites himself Hope Possession Gordon of Abergeldie contra Lord Forbes As to the quantity of violent profites by the custom of Burgh it is double Mail of the Tenements within Burgh Hope Mails and Duties Christian Buchan contra Marion Seaton But in Lands it is the greatest profites that the pursuer can prove he could have made And though in cases of violence the quantities and prices are ordinarly probable by the pursuers oath juramento in litem because he ought to have not the ordinary price but praetium affectionis as that which themselves accounted to be their loss yet here probation must be used But if it be not full the pursuers oath may be taken Violent profites are also sustained against all Defenders in solidum as in Spuilzie but when diverse compeared and proponed partial objections against removings and succumbed they were found lyable for the violent profites of the Lands in the exceptions severally Hope Mails and Duties William Wallace contra Alexander Blair Otherways partial exceptions are not here competent Hope exceptions Laird of Balnagoun contra Hector Monro Neither will any exception be admitted which was competent and proper in the Decreet of removing relative to Right or Possession But Suspension or Reduction ought to be intented thereupon The like as to violent profites against successors in the Vice March 22. 1623. Laird of Hunthil contra Rutherfoord 55. Succeeding in the vice is a kind of intrusion whereby after warning any person comes in possession by consent of the parties warned Or otherways against such there needs no warning but a summar Process as in other intrusions having the same probation for in both the possession must be proven which with the warning is sufficient but can have no effect till Decreet of removing be obtained against the Tennent warned Though Violent profites be the ordinary effect both in removing and succeeding in the Vice These will proceed as to attaining possession and no violent profites be obtained when there is any colourable Title which might have made the warned partie reasonably doubt of the pursuers interest or of his own Right Hope removing Walter Ord contra Tennents But this useth ordinarly to be so provided in the Decreet of removing and will be hardlie sustained thereafter by recanvassing the defences competent in the removing that it may appear whether there were a probable ground in them or not at least the defender would protest for the reservation as to the violent profites for if this were again sustained it would bring over-head all the many intricat defences competent in removings of which formerly And therefore in the removing pursued by the Earl of Argile contra Mcnaughtoun the Lords repelled the defences but declared that they would have consideration thereof as having probable ground to debate and would modifie the excrescence of the violent profites over and above the ordinary profites TITLE XX. WODSETS 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 Disponers property 2. The Nature of Wodsetts 3. The Nature of Reversions 4. Kinds of Reversions 5. Solemnities requisite in Reversions 6. The effect of Clauses irritant in reversions 7. Reversions are stricti juris 8. Kinds of Wodsetts 9. Proper Wodsetts 10. The effect of Tacks after redemption containedin reversions 11. Improper Wodsetts 12. Regress 13. Discharges of Reversions 14. Wodsets become legally extinct by declarator of expiring thereof or by the order and declarator of redemption 15. The order of redemption of Apprizings or Adjudications 16. The order of redemption by conventional reversions 17. Premonition 18. Consignation 19. Declarators of redemption 20. The effect of declarators of redemption 21. Defences against declarators of redemption 22. Requisition 23. How far other rights may be reserved in redemptions or renounciations AWODEST as the word insinuats being the giving of a Wedd or Pledge in security it falleth in consideration here as the last of Feudal Rights For Pledges are the last of real Rights as before in the Title real Rights is shown where it was also cleared what was the ancient custom of Impignoration of Moveables which shall not be here repeated but only what is proper to the impignoration of Immoveables and Heretable Rights by the Feudal Customes and our own 1. That which doth most properly agree to the nature of a Pledge or Wodset with us is where any Inseftment or security is granted in security of a sum of Money or for relief of Cautionry or any other sum which bears expresly that the Land or Right is disponed for security or relief and therefore needs express no Reversion for it is necessarly implyed that so soon as relief or satisfaction is obtained the Infeftment granted in security ceasseth so that if the granter of the Infeftment or any other bound in the principal Obligation either make payment or the receiver thereof by his intromission be satisfied ipso facto the Infeftment is extinct Yea if the debitor granter of the Infeftment and Security should instruct compensation as it would extinguish the principal Bond so would it in consequence the Infeftment for security thereof This Infeftment being really a Pledge it is consistent with the Infeftment of Property in the debitor as two distinct kinds of Rights and thereby the debitor is not denuded even although the Infeftment for Security were publick by Resignation because it is not a Resignation simply in favorem but ad effecsum viz. for Security and therefore when the debt is satisfied the debitor needs not be re-invested but his former Infeftment of property stands valide Like unto these in all points are Infeftments upon Appryzing which are truly pignora praetoria whreby the debitor is not denuded but his Infeftment stands and if the Apprising be satisfied within the Legal it is extinguished and the debitor needs not be re-invested and therefore he may receive Vassals during the Legal and if he die the appearand Heir intrometting with the Mails and Duties during the Legal doth thereby behave himself as Heir as was found February
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
Campbel 18. Recognition is not inferred by an alienation to the Vassals appearand heir by the ordinary course of Law as by a father to his eldest son because the fee will befall to the son after the fathers Deceass Neither was it inferred by an alienation granted by a Grand-father with consent of his son to his oye who was alioqui successurus by the course of Law Hope recognition Adam Rae contra Laird of Kellie Yet recognition was found incurred by a Vassals Infeftment to his eldest son his heirs and assigneys the son having Disponed the major part to strangers seing the father who was Vassal did not bind up his son from Disponing by a Clause irritant neither did the son purge the alienations made by him during his fathers life July 15. 1674. Sir Charles Erskin contra Forbes of Achintoul And recognition was found incurred by the Infeftments of Ward-lands by a Husband to his Wife in Fee failing heirs ofhis Body albeit the Wife did not acept or make use of the same but brooked by a prior conjunct Infeftment February 14. 1678. Knock contra Lady Knock. And recognition was found to be incurred by an alienation by the Vassal to his Brother who for the time was his appearand heir but not necessarly by the ordinary course of Law seing the Vassal might have had Children of his own and so his Brother could not be called alioqui successurus unless it were by accident Spots recognition Kings Advocat and his Son contra Earl of Cassils and Collane The like July 29. 1672. Lord Hattoun contra Earl of Northesk 19. It is more questionable whether recognition is incurred by a conditional alienation bearing if the Superiour consent or saving the Superiours right Craig following Baldus in the said three Dieges l 3. declareth that if such Clauses be insert bona fide they infer not Recognition But contrariwys if they be done fraudulently as when the Vassal Seaseth and Possesseth a powerful Person whom the Superiour cannot easily Dispossess or his Enemy concerning whom there can be no doubt of the Superiours will or if the Superiour have declared his will upon the contrary But for clearing further of the Point distinction would be made of the Nature and Tenor of the Clause which may either be suspensive or resolutive of the Property or Fee in the former case Tradition is only made of the Possession but the Property is suspended till the Superiours will be known as if the Vassal Dispone and possess another without Seasine there could be no recognition or though he Possess him by an Instrument ofPossession bearing expresly that he should have no right to the Property till the Superiours consent were obtained this were a suspensive Clause like to the addictio in diem in the Civil Law by which only Possession and not the Property was transmitted for that time and so till the purification of the condition it could be no alienation But when the Clause is only resolutive not hindering the transmission of the Property but resolving or annulling the same though transmitted in such an case such Clauses do not exclude recognition because there is truely there an alienation without the Superiour consent which is only to be disannulled by his disassent much less can such general Clauses as Salvo jure cujuslibet or Salvo jure Superioris avoid recognition 20. Recognition was found not excluded or burdened by Inhibition against the Ward-vassal before the gift and Declarator of the Deed inferring recognition seing the Creditors inhibiting did not pursue reduction before Declaratorof recognition December 16. 1680. John Hay contra Bethark and Laird of Balagarno 21. Neither was recognition excluded because the Deeds inferring recognition was done when the Disponer was drunk not being to stupidity impeding reason July 29. 1672. Lord Hattoun contra Earl of Northesk 22. To come now to the Superiours consent it may be either antecedent concomitant or consequent to the alienation and it may be either express or tacite all which will be sufficient to avoid recognition albeit many of them will not be sufficient to make a valide Infeftment if the same be granted by the Vassal to be holden from him of the Superiour which by our custom is null till it be confirmed whereunto an anterior consent or Homologation in any ways will not suffice Craig in the forementioned Dieg. 3. relates the opinion of the Feudists whereunto he agrees that if the Vassals Fee be granted to him his Heirs and Assigneys whatsomever that thereby ther is granted a general antecedent consent of the Superiour to his Vassal to and Assigneys whatsomever that thereby there is granted a general antecedent consent of the Superiour to his Vassal to alienat or assign to whom he pleaseth But the contrary was found in the case of the Lady Cranagie contra Lord Cranburn Feb. 5. 1633. And that the Disposition to Assigneys did only importa power to Assign the Disposition before Infeftment taken thereupon 23. There is no question but the Superiour Confirmation is sufficient even the Kings Confirmation though without a novo damus albeit it may pass in Exchequer without the knowledge advertency of the recognition incurred it was found sufficient being done before the Donatar of recognition was Infeft Hope recognition Rae contra Laird of Kellie Which Confirmation doth secure against recognition falling by thatInfeftments Confirmed but doth not secure against recognition upon other subaltern Infeftments not Confirmed which are not considered to be known by the King or his Officers without a novo damus and so imports but a passing from recognition by the Infeftment Confirmed but not to import an absolute Ratification pro omni jure February 6. 1673. Lord Hattoun contra Earl of Weims The like was found February 23. 1681. John Hay contra Creditors of Murie And a Donatar of recognition having granted Precept of clare constat acknowledging the Vassals right was found thereby excluded albeit the Precept did bear to be in obedience of Precepts out of the Chanclery June 24. 1668. Andrew Gray contra Howison and Gray But the Superiours consent is not inferred by granting Charters for obedience upon Appryzing though before any Infeftment of the Donatar Hope recognition Laird of Lugtoun contra Laird of Lethendie 24. The Superiour consent also by Homologation is sufficient to avoid recognition as if it were express consent as if the Superiour require the new Vassal or Sub-vassal to perform the Services due out of the Fee for thereby he acknowledges him Vassal as is observed by Craig in the case betwixt the Laird of Calderwood and Maxwel of Calderhead Or if the Superiour should pursue the new Vassal for the avail of his Marriage Liferent-escheat or other Casuality of the Superiority 25. Recognition being incurred so openeth and returneth the Fee to the Superiour that no Debt or Deed of the Vassal doth burden the same but these only which before that time were established by consent of the Superiour or Authority of Law
acquired by a just Title though for a Cause onerous and an equivalent price and by continuation of Possession bona fide yet prescription taketh no effect because of the inherent Vitiosity The like is to be understood of Rapine or violent Possession Yet the Fruits and Profites of such things belong to the bonae fidei possessor rather by that Right that followeth possession bonae fidei Of which formerly in the Title real Rights then by prescription Thirdly It runneth not against Pupils by the Civil Law though some think that it is not to be understood of their Moveables yet it runneth against other Minors but they may be restored if they pursue for Restitution in the time and manner prescribed in Law 11. To come now closs to our Law concerning Prescription our common Rule of Prescription is by the course of fourty years both in Moveables and Immoveables Obligations actions Acts Decreets and generally all Rights as well against these absent as present we have not these differences which we have shown were in the Civil Law and because our Prescription is so long there is little question with us de bona fide But there must be continual possession free from interruption and in Lands and other Fees a Title of which hereafter 12. By our ancient Custom there was no place for Prescription in any case which hath been Corrected by our Statutes both as to long and short Prescription First as to personal Rights in Par. 1469. cap. 28. par 1474. c. 54. it is Statute that as to all obligations that should be pursued thereafter and that were not then depending in Law before the making of that Act that if the Creditor did not follow or pursue the Obligation within the space of fourty years and take document thereupon the same shall be prescrived and of no avail Which Statute though it mention only Obligations that is to say simple Obligations was also extended to others as Contracts of Marriage whereupon no Marriage followed as may be inferred argumenta a contrario from the Decision February 26. 1622. Sir George Hamiltoun contra Lord Sinclar And afterward it hath been ordinarly extended even to Contracts of Marriage wherepon Marriage followed November 27. 1630. Lauder contra Colmiln December 23. 1630. Ogilbie contra Lord Ogilbie It was also extended to Testaments June 19. 1627. Lundie contra Laird of Balgoum And was also extended to pursuites for Tutor Counts Hope Prescription It was also extended to all Decreets though in foro contradictorio and this ordained to stand as a constant Practick July 26. 1637. Laird of Lawers contra Dumbar 13. Prescription of fourty yeays was found sufficient to Constitute the Right to a Bell in a Kirk-steeple against another Kirk pursuing therefore without instructing a Title whereby they had the Bell which is not necessary to be instructed but is presumed from Possession in Moveables December 7. 1633. Minister and Session of Aberchirdo contra Parochioners and Kirk of Chanrie 14. Prescription being odious the fourty years are accounted de momento in momentum So that it is not the running but the compleating of the fourty years that makes Prescription and therefore a Write blank in the Moneth and Day expressing the year was reckoned from the last of December that year and because there was three quarters wanting of fourty years before insisting upon the pursuite thereupon it was sustained as not prescribed Sep. 23. 1630. Ogilbie contra Lord Ogilbie But in regard of the length of this Prescription it is accounted ex tempore continuo non utili and so no abatement for the time of troubles or surcease of Justice even in the case of Mortification to Bead-men June 30. 1671. Bead-men of Magdalen Chapel contra Gavin Drysdale After this Statute there was no Prescription of Heretable and real Rights and therefore not of a Decreet of Poinding the ground Hope Prescription Sir George Currier contra Laird of Louristoun Only it was declared that no person shold be compelled to produce Procuratories or Instruments of Resignation Precepts of clare constat or other precepts of Seasine of Lands or Annualrents whereof the Heretors and their Authors or Liferenters having Liferents reserved in their Infeftments were in Possession fourty years together their Charters making mention of the Precepts the wanting whereof shall make no Reduction the Charters and Seasine being extant Par. 1594. cap. 214. 15. But Prescription of fourty years is introduced of all Heretable and other Rights Par. 1617. cap. 12. where the Heretors their Predecessors and Authors possessed Lands Annualrent or other Heritage by themselves their Tennents or others having their Rights as by Liferenters for the space of fourty years together following the dates of their Infeftments without lawful Interruption that such shall not be troubled pursued or unquieted by HisMajesty and other Superiours Authors their Heirs and Successors uponany ground whatsomever except upon falshood providing such Heretors shew a Charter to them or their Authors preceeding the saids fourty years possession with the Instrument of Seasine following thereupon Or otherways Instruments of Seasine one or moe continued and standing together for the said space of fourty years either proceeding upon retours or precepts of clare constat where by standing together it is not meaned unreduced but that either the Vassal lived and brooked by one Seasine fourty years Or if he died that the Seasine was renewed to his Heirs and so continued not only the Possession but the Seasine fourty years In which the continuation of Seasines cannot be reckoned de diein diem because there must necessarly be an Interval betwixt the death of the person first ceased and the service of the Heir to whom the Law gives annum deliberandi to consider whether the Heretage will be beneficial or hurtful and accordingly whether he will enter or not February 15. 1671. Earl of Argile contra Lord of Mcnaughtoun And also all actions upon Heretable Bonds Reversions Contracts or others whatsomever Except Reversions incorporat within the body of Infeftments used by the Heretors for their Title or Registrat in the Register of Reversions Which general Clause was found to extend to Actions of Reduction of Retours though if no other Heir had been retoured the right of Blood prescrives not but any person may enter Heir to his Predecessor who died hundreds of years before yet if any other were entered he cannot after fourty years quarrel or reduce the same by the general Act of Prescription though the retour was anterior to the special Act of Prescription of Retours Par. 1617. cap. 13. whereby Retours thereafter are irreducible if not quarrelled within twenty years November 28. 1665. younger contra Johnstouns In the former Statute it is declared that Actions of Warrandice shall not prescrive from the date of the Bond or Infeftment whereupon Warrandice is sought but only from the date of the distress 16. But this Prescription is not to be extended against Superiours upon their Vassals Possession
Town of Kilcudbright Prescription as to the King was found sufficiently interrupted by the Kings Letters published at the Cross of the head Burgh of the Shire where the Lands in question lye without Citation or Charge March 30. 1630. Earl of Monteith contra 27. There was an Act of Sederunt of the penult of March 1630. upon a Letter from the King to the Lords of Session bearing that in respect by the Act of Prescription 1617. All Heretable Rights cled with fourty years Possession are declared irreducible unless they had been quarrelled within the space of fourty years 〈◊〉 that Act and libertie granted to intent Actions within he space of thirteen years after the date of the said Act to interrupt Prescriptions albeit there had been no interruption sor fourtie years before the said Act And His Majestie resolving to use Interruption within the space of thirteen years of Deeds done to the prejudice of the Crown for preservation of His Majesties Right and Actions competent to Him and His Successors for that effect seing a multitude that may be concerned therein cannot commodiouslie be summoned personallie or at their dwelling-places within the saids thirteen years which were to expire in June 1630. And it being necessar that some solemn Act should be done to testifie the Kings will and resolution to prosecute Actions in His own time which could not be more properly and conveniently done nor by inserting and publishing as follows Therefore His Majesty appointed His Declaration for prosecuting His Rights to be insert in the Books of Sederunt and Letters of publication thereupon directed to be published at the Mercat Cross of Edinburgh and other places needful And desired the Lords to declare the 〈◊〉 to have the force of a Legal and lawful Interruption which the Lords enacted to be done accordingly as to the particulars therein-contained and 〈◊〉 Letters of publication at the Mercat Cross of Edinburgh and other mercat Crosses of the Kingdom where the Lands and Baronies lye or where the persons interressed therein reside and at the said Mercat Cross of Edinburgh and Peer of Leith for these without the Kingdom Which Act of Sederunt was ratified Par. 1633. cap. 12. Which Letter and Acts. extend to His Majesties Annexed and Non-annexed Property whereof the Ferms Duties and Feu-ferms were counted for in Exchequer since the Moneth of August 1455. and to the Principality and to the Erection of Benefice Spirituality or Temporality Patronage of Kirks pertaining to His Majesty and His Predecessours Regalities and Heretable Offices any of the saids particulars being unlawfully Disponed against the Laws and Acts of Parliament and likewise against changing of Ward in Blensh or Taxt-ward granted by the King or His Predecessors in their Minority and not ratified by any King or Prince in their Minority and but prejudice to any person of their lawful Defences in Actions to be intented by His Majesty thereupon In prescription this is a general exception contra non valentem agere non currit praescriptio and therefore Bonds prescrive not from their dates but from the Term of payment February 17. 1655. James Butter contra Gray June 23. 1675. David Bruce contra James Bruce And Inhibition prescrives from the Date of the last execution and not from the Registration February 19. 1680. Lutefoot contra Prestoun So an obliegement by a Cautioner in a Contract of Marriage oblieging to impoly a sum for the wifes use found only to run from her Husbands death July 5. 1665. Mckie contra Stuart And likewise prescription was not found to run against a party to take away his Infeftment seing he had given a Liferent-right which would have excluded him from any Action that could have attained possession and that he was not oblieged to use Declarator or Reduction in this case more then in the prescription of Bonds from their dates February 1668. Earl of Lauderdail contra Viscount of Oxinfoord The like January 17. 1672. Young contra Thomson February 15. 1680. Brown of Colstoun contra Hepburn of Bear-foord Yea prescription was found not to run against a party forefault and sequestrat by the Usurpers who possest his Right in question for eight years which years therefore were deduced January 15. 1678. Duke of Lauderdail contra Earl of Tweedale But where a party was not forefault but durst not appear during the Usurpation he was not found non valens agere seing he might pursue by a procurator or assigney July 24. 1678. Collonel Whitefoord contra Earl of Kilmarnock Yea. prescription was not extended to the Liferent of a Wife in a sum payable to her and her Husband the longest liver though the Stock was prescrived against the Husband who neither insisted nor got annual for fourty years but not against the Wifes interest in the annualrent though the sum bore no annualrent yet the Wife was found to have Right to uplist the sum and to re-imploy it for her Liferent use July 22. 1675. Janet Gaw contra Earl of Weims Our Statutes have introduced several short prescriptions as the Rights to which they relate do require which we shall shortly represent not according to the time they were introduced but according to the time of their endurance most of them occurring to be considered in their proper places with the rights whereto they relate 28. And first Our Law hath introduced the annus deliberandi in favours of Heirs because if once they enter or immix themselves in their predecessors Heretage they become lyable for their whole Debts though far exceeding the worth of their Heretage and therefore the Heir appearand hath a year to deliberate whether the Heretage will be profitable during which he may not only enquire but may pursue Actions of Exhibition ad deliberandum And if they forbear they are free of all Actions against them or the Heretage during that year and therefore that priviledge prescrives in a year and day after the Defuncts death 29. Secondly by the Act of Par. 1661. cap. 24. There is a preference granted to the Creditors of Defuncts preferring them to the Creditors of the heir or appearand heir so that all diligences by the Creditors of Defuncts against the Defuncts Estate shall be preferred to the diligences for Debts contracted by appearand heirs providing the saids diligences of the Defuncts Creditors be compleat within three years after the Defuncts death albeit the being compleat be not exprest in the Statute Yet by the design thereof it must be so understood for if Diligences inchoat in these three years though prefected thereafter would be sufficient the preference would not be for three years but might come to be for thirty years Compleat Diligences are Appryzings or Adjudicrtions with Infeftment or a Charge against the Superiour to Infeft Poinding and Decreets for making Arrested sums or goods forth-coming And by the said Statute Dispositions by heirs or appearand heris of the Defuncts Eltates are declared not to be valid against the predecessours Creditors unless made a
it did so much appear that the Parliament of purpose had omitted it yet in the said case Greirson contra Closburn upon the 21. of July 1636. they did forbear to intimate their Decision and desired the parties to agree And no Composition was found due by an Adjudger having Charged before the late Act of Parliament December 23. 1669. whereby like Compositions are appointed for Adjudication as for appryzing July 10. 1671. Scot of Thirlestain contra Lord Drumlanrig In which case it was found that the Superiour might refuse to enter the Adjudger if he payed his debt but that he was to have nothing for Composition if he did so in the same way as in appryzing by the old Act of Par. 1469. cap. 36. by which that option is given to the Superiour 49. Craig observeth that it was doubtful in his time whether there were a Legal Reversion competent to any renuncing and afterward returning to Redeem Adjudications or Appryzings wherein he favoureth the affirmative but the said Statute Par. 1621. cap. 7. determineth the case and granteth a legal Reversion in favours of these who have posterior Adjudications within the space of seven years or ten years since the Act of Par. 1661 betwixt Debitor and Creditor which is also competent to any Renuncing in their Minority and being restored against the said Renunciation but it is not competent to any other Heir renuncing yet if the Heir though Major find that he hath prejudged himself by renuncing a profitable Heritage he may grant a Bond and thereupon cause within the legal adjudge and redeem the former Adjudications which though to his own behove will be effectual there being so much equity and favour upon his part being willing to satisfie the whole debts 50. It is clear by the said Statute the Lands or Heretage of a Defunct may be Adjudged the heirs renuncing not only for satisfaction of the Defuncts debt but of the heirs own proper debt 51. Adjudications are taken off and extinguished in the same manner as appryzings are by intrometting with the Mails and Duties of the Lands adjudged as is clear from the said Statute And though cases be not so frequent in Adjudications as in appryzings to clear the other ways of their extinction Yet the reason being the same in both there is no doubt but the determination will also be the same 52. The other manner of Adjudications is for making effectual Dispositions or obliegements to Infeft whereupon when the acquirer hath used all diligence competent in Law against the disponer to fulfil the same by obtaining Decreets and Horning Registrat thereupon either against the Disponer or his Heir Law being there defective and cannot make the Disposition or Obliegement effectual the Lords have allowed Adjudications of the Lands disponed whether in Fee or Liferent July 19. 1611. Lord Johnstoun contra Lord Carmichael Spots hic contra Bruce of Airth And thereupon the Superiour will be discerned to receive the Adjudger as was found in the case of an Obliegement to Infeft a Woman in Liferent holden of the Superiour wherein she having used Horning the Superiour was decerned to receive her July 10. 1628. Harris and Cunningham contra Lindsay Feb. 24. 1675. Marion Hamiltoun contra Mr William Chiefly The like in the case of an Heretable Disposition whereupon the acquirer having obtained Decreeet against the disponers heir for Infefting him and used Horning thereupon The Director of the Chancelary was decerned to Infeft the acquirer Decemb 16 1657 Ross contra Laird of May. This manner of Adjudication is extended no further then to the thing disponed and hath no Reversion It requires no Charge to enter heir or renunciation but the adjudger must instruct his Authors right June 24. 1669. Mr. Dowgal contra Glenurchie These Adjudications do not come in pari passu with other Adjudications within the year nor any other with them July 16. 1675. Campbel of Riddoch contra Stuart of Ardvorlick Decemb. 2. 1676. Lady Frazer contra Creditors of the Lord Frazer and Lady Marr. 53. By the late Act of Pavliament anent adjudications there are introduced two new forms of Adjudications the one special of Lands effeirand to the sum and a fifth part more in case the debitor produce his Rights and put the adjudger in his Possession of his particular Lands adjudged But if he do not adjudications are to proceed as appryzings did generally of all the debitors Lands or real rights periculo petentis redeemable within ten years These Adjudications are come in place of appryzings especially the general adjudications which are declared to be in the same condition in all points as appryzings were by the Act of Par. 1661. cap. 62. Except as to the lengthening of a Reversion from seven to ten years So that what hath been said of Appryzings will have the same effect as to general Adjudications but special Adjudications being equitable and favourable will not meet with such strictness This Statute hath taken away the greatest Reproach upon our Law which for every debt indefinitely appryzed every Estate great or smal which had no excuse but that the debitor might redeem in seven years But all debitors being necessitat to appryze within a year or to have no more then the legal Reversion paying the whole debts the power of Redemption came to be of little effect few being able to pay all their debt in one day But now if any debitor complain that his whole Estate is adjudged and no proportion keeped betwixt the debt and his Estate it is altogether his own fault seing he might offer a proportional part and liberat all the rest of his Estate which part is Redeemable also in five years And though a fifth part be added it is no more then the ordinary penalty being an 100. Pounds for a 1000 Merks and 50. Merks for the Sheriff-fee makes 200. Merks being the fifth part of a 1000. Merks and which was sustained in the most favourable cases of Appryzings from the beginning and the Reversion was for seven years Adjudications being executive Decreet the Lords allow them the greatest dispatch and to prevent Collusion whereby some debitors might be postponed by debate and probation till the year pass which would excludethem Therefore the Lords do not suffer Co-creditors to stop Adjudications that they might see for their entress and put the pursuer to abide the course of the Roll unless they produce an Entress upon which the Ordinar will hear them immediatly without going to the Roll Jan. 22. 1681. Earl of Dundonald contra Dunlop and his Creditors Neither is the Superiour suffered to propone defences Jan. 13. 1675. Kinloch of Gourdie contra Mr. James Blair and James Strachan Yea the Lords sustained the establishment of the debt in the same Lybel with the Adjudication July 26. 1676. Alexander Boyd contra Boyd of Pinkill But if the debitor himself appear the Cause goes to the Roll and if there be prior adjudgers defences proponed against the debt or adjudication
was lyable to fulfill the Bastards back-band June 20. 1671. Alexander Alexander contra Lord Saltoun 47. Ultimus Haeres may seem to be a Succession from the dead and to come in amongst other Heirs yet though it hath the resemblance of an Heir because it hath effect when there is no other Heir and makes the Heritagelyable to pay the Defuncts debts it is only a caduciarie Confiscation of the Defuncts-Estate with the burden of his Debt but no proper Succession to him therein which appeareth thus The Heir is one person in Law and is therefore personally obleiged for all the Defuncts debts so is not the Fisk against whom or the Donatar there lyeth no Personal Action for payment but for Restitution if he have intrometted and of Real Action contra Haereditatem jacentem which is most proper by Adjudication being the Supplement of ordinary Actions or Executions competent by Law For there being no partie to represent the Defunct debitor there can be no Decreet but cognitionis causa and Adjudication following thereupon in which the Fisk or Donatar is to be called passive as the party having Interest to see that the Debt be due which will affect the Defuncts caduciarie Heritage to the detrement of the Fisk or Donatar So then ultimus Haeres and Bastardrie are of the like Nature which being caduciarie Confiscations fall to the Fisk because no other can have right there may be this difference betwixt them That in the case of the last Heir Creditors for their satisfaction may confirm the Defuncts Moveables and so recover the same for their own Satisfaction in which case they would be lyable as other Executors to the remanent Creditors of the Defunct and to the Fisk or Donatar for the superplus As in the place of nearest of Kin to the Relict also for her part but this being only for obtaining their own Satisfaction and for shunning a more extraordinary way by Adjudication which also they may use at their option they ought not in prejudice of the Fisk to have the third part of the Defuncts part as other Executors but in the cases of Bastardry Confirmation of Executors is not competent because the Bastard being excluded from the power of making Testament can have no Executor Concerning last Heir the greatest doubt is who they are and in what Cases they take place As to the first Craig lib. 2. Dieg. 17. is not positive whether Superiours be last Heirs of the Defunct in the Fies held of them or if the King be the last Heir for all And according to the antient Feudal Customs there is no doubt the Feus return to the several Superiours for thereby none could succeed without Express provision in the contrary but the lawful Issue of the Descendent of the first Vassal whose Person and Race was peculiarly chosen and confided in by the Superiour But now Fies not being gratuitous as at first but for onerous causes besides the reddendo service and ordinarly granted to the Vassal and his Heirs whatsomever Which failzing the King by his Prerogative Royal excludeth all other Superiours who are presumed to retain no right nor expectation of Succession unless by express provision of the Investiture the Fies be provided to Heirs Male or of Tailzie which failzing to return to the Superior In which he is proper Heir of Provision As to the other Doubt in what case the King is last Heir Craig in the forenamed place relateth that some were of opinion That if the Defunct had no Heirs within the 7th degree the King taketh place as last Heir And that others thought it to hold in Collateral Successions but his own opinion is in the contrary That any Heir of what degree soever hath Right which suiteth with the ground now laid that the King hath right as last Heir to the Heritage become caduciarie Because no other partie can be instructed lawful Heir So he reporteth it was found in the case of the Earl of Marr who was served Heir to Lady Elizabeth Dowglas Countess of Marr beyond the tenth degree And that the Lord Seatoun that he might have a Title to the Redemption of the Lands of Longnidrie against Forrester served himself Heir to the granter of the Wodsett beyond the 7th degree whereof several degrees were Collateral And the French King Henrie the 4th Succeeded to Henrie the 3. though not within the 15. degree The gift or right of ultimus haeres hath no effect till Decreet of Declarator be obtained thereupon in the same way as in Bastardry July 20. 1662. Laird of Balnagoun contra Dingwal July 31. 1666. Thomas Crawford contra Town of Edinburgh TITLE XXVI Succession 1. Whether in equity there be a Rule in Succession 2. That Rule is the expresse will or presumed will of the Defunct 3. The first degree of Succession by the presumed will of Defuncts 4. Whether in equity there be right of representation 5. Failing descendents ascendents succeed in equity 6. Failing both brothers and sisters succed 7. Failing these the nearest Agnat succeeds 8. The succession of Cognats 9. The Jewish succession whereby all the sons succeed and exclude the daughters and the eldest son hath a double portion 10. Fathers could not prejudge the primogenitur of their eldest Sons 11. By the Jewish succession failing descendents the inheritance passeth to Brethren and these failing to Fathers Brethren and failing these to the nearest Kinsman 12. Whether in the Jewish Succession there be right of representation 13. Why no Femals but daughters succeed among the Jews 14. Why Parents Succeed not amongst the Jews 15. Succession amongst the Romans was first by Testament 16. If there was no Heirs institute by Testament the antient Roman Law called all the Children of the Family unforisfamiliat male female not excepting adopted Children to Succeed 17. These failing the nearest Agnats but no Parents thereby Succeed 18. The Romans Succession be the pretorian Law 19. Their Succession by Justinians novel constitution 20. In Feudal Succession the first Rule is the expresse will of the partie by the investitur 21. The nixt Rule is the conjectured will according to the nature of the Fee 22. Primo-geniture now established by common custom in Feudal Rights 23. Succession in Scotland is wholly different in moveables and immoveables 24. The several degrees of Succession in moveables 25. Succession in Heritable Rights 26. The difference betwixt the two successions 27. The priviledge of Heirs not to be prejudged by their predicessors deedes on Death-bed 28. What is estimate Death-bed 29. Against what rights Death-bed is extended 30. Death-bed annulls no deeds for causes onerous 31. Dispositions in Testaments are as on Death-bed 32. Annus deliberandi 33. Kinds if Heirs in Scotland 34. No place for Adopted or Cognats in succession with us 35. Parents Succeed to their Children exclude the Parents Collaterals or these representing the Colaterals SUCCESSION to Defuncts is the most Important Title in Law for thereby the Rights of all
Ascendent or these of their side but only to Agnats conjoined by the Father Grandfather c. Which holdeth even though the heritage descended from the Mother or these of her side for in the service of Heirs the nearest lawfull Heirs are only inquired and retoured either by the Lineall Succession aforesaid or by express Tailzie or provision in the Infeftment without respect from whence the Inheritance flowed for which we have no Satute nor Custom But in England it is otherwayes for Paterna paternis and Materna Maternis takes place but with us the contrare was found in the case of John Gilbert as Craig observeth Lib. 2. Dieg 17. And he there relateth that many afterward changed their opinion therein and though there be equity in it yet no Law nor Practique since hath favoured the Maternal Line but the Father was found Heir to his Son even in the Lands where the Son was Infeft as Heir to his Mother and did exclude his Brother Uterin by that Mother February 5. 1663. Lenox contra Lintoun 4. In all this Line of Succession there is place for Representation of Descendents in place of their Defunct Parents So that Females of a further degree by the Right ofrepresentation exclude Males of a nearer degree as the eldest Sons Daughter will be preferred in theGrandfathers Inheritance to his other Sons in private Rights though that be contraverse by the more comon Feudall Customs as is largely and learnedly dispute by Tiraquellus 35. In this Lineall Succession the Father Grandfather or other Ascendents of the Paternall Line succeed in heritable Right next unto Brothers and Sisters and before all other Collateralls or Agnats We have shown before why there is no mention of Ascendents in the Jewish Succession because such a case could hardly occurr among them Craig Lib. 2. Deig 13. affirmeth that it was doubtfull in his time whether Ascendants could succeed in heritable Rights and that he heard the opinion of some learned men in the contrary and that he had not found the Lords decide in it and that it is contrare to the Feudal Law and also to his own opinion yet he brings both evident reason and example in the contrary the reason is that no Inquest can justly Retoure that the Father Brother is nearer then the Father He bringeth also the Example of the Earl of Angus served Heir in the Earldom of Angus to his ownSon whom he had infeft therein And the Lord Colvill in likemanner having infeft his Son in all his estate though sum affirmed that this was by provision in the infeftment yet that the Service was is sure but that provision is uncertain and though some also were doubtful whether the Earl of Angus was served and infeft as Heir to that same Son which well inferreth that the Father was not infeft as Heir to his Son but not that he was not served Heir to him therein for he might have been served and not infeft Whereby the service as incompleat became void and the next Earl behoved to serve of new to the Son who died last vest and seased as of Fee The Custom and common opinion since is for the Ascendants and so the Earl of Roxburgh was served as Heir Male to his Son The Lord Ker and many others which ought to be the more favoured as more conform to equity and the Law of nature which in Dubio ought to take place where there is no Law nor custom to the contrary as with us there is none Neither did I ever hear of one who attempted to exclude a father by the Fathers Collaterails And though there had been no Decision upon it neither have there been upon many other uncontroverted Customs especially in Succession but the acquiescence of all Parties having interest in matters of so great moment is a strong Evidence of the Nationall consent by Custom But it hath aho been so decided by the Lords Hope Succession Mr. Robert Burnet contra Mauld Yea a Son being infeft as Heir to hisMother dying without Issue his Brother uterin by the Mother was not found Heir to him but his Father February 5. 1663. Lenox contra Lintoun As to the alledged opposition of the Feudall Law as hath been oft times said it is Local And therefore as in England all Ascendents are excluded so in Germany they succeed in the next place after descendents and are preferred to Brothers and sisters according to theNaturall course ofSuccession The reason why Brothers and Sisters of the Defunct are preferred to the Fathers with us may be because such Fees do commonly proceed from the Father And therefore by the continuance of that sameFatherly affection are derived to the Brothers and Sisters and because they are in more need of Provision then the Father TITLE XXVII Heirs 1. Appearand Heirs may pursue exhibition ad deliberandum 2. They may defend their predecessors Rights and Possessions being called or compearing for their interest and their executors have right to the Rents of these years they were appear and Heirs 3. The Aliment of Heirs from the Donatars and Life-rentars 4. Heirs not entred have the benefit of Clauses which by Nature import they should not be actual Heir 5. Heirs have interest in all Rights granted to their Predecessors though not mentioning Heirs who are not exclusive of Heirs by their Tenor and Nature 6. Heirs have the benefit of all Rights heritable by Destination or having a future Tract of time after the Defuncts Death 7. Heirs have Right to Moveable heirship or obleigment for Sums wherein Executors are excluded 8. Heirs of Lyne are heirs generally their interest 9. Hirship Moveables 10. Heirs of Conquest their interest 11. Heirs Portioners their Interest 12. Heirs Male Tailzie and Provision their interest 13. All Heirs are lyable pasivè for the Defuncts debt but not in the same way 14. Heirs Portioners how far lyable 15. The effects of different Provisions or Obligations by Defuncts in Favours of Divers heirs Portioners 16. Heirs not being Portioners no substitute in Bands are lyable in solidum 17. The order by which heris are lyable passivè and may be discust 18. Heirs of Tailzie ripresent not the Defunct in obligations contrary to the Terms of the Tailzie 19. Heirs of Marriage may quarrel their Predecessors Deeds being meerlygratouitus in their prejudice but not such as are onerous or rational Deeds 20. Heirs having the benefit of discussing may propone the Exception that all parties having interest are not called without instructiug the Right whereto they may succeed 21. The exception of the order of discusing is not sustained without condescending on the heritage whereunto the anterior heir may sueceed and what is discusing 22. The order and effect of a Genral Charge to enter heir 23. The order and effect of a special charge to enter heir 24. Renounciation to be heir its order and effect 25. The entrie of heirs general and effects thereof 26. The entrie of heirs upon precept of Clare Constat
by the Infeftment of Liferent granted by the Superior 3. The kind of Service which relateth to the Fee's being in the hands of the Liferenter in respect that the Liferent is oftimes a different Holding from the Fee and is ordinarly Blench and therefore it is the Superiors Interest to know what such Service is and also to know by whom and through what Cause the Fee is in the hands of such a Person These Circumstances therefore do not make distinct Heads of the Brieve and are not al ways necessary to be retoured as the former Heads be 41. The points aforesaid being cleared and instructed to the Inquest the Service is the Sentence or Decreet which ought to be sealed with their Seals and with the Seal of the Judge to whom the Brieve is directed and is returned to the Chancerie whence it is called a Retour being Registrate there and Extracted till which it is not compleat neither doth the Service ordinarly instruct the active Title but only the Retour The Service is keeped in the Chancery for Warrant of the Retour Yet it was found that Services before the year 1550. were sufficient to satisfie the Production in Improbations or Reductions without producing the Retour it self because at that time the Books of the Chancerie were destroyed by War Feb. 17. 1624. Lord Elphinstoun contra Earl of Marr. 42. Retours are easily annualled or reduced because no Desender is called thereto and the Probation in most part is by presumption as hath been shown and by the proper Knowledge of the Inquest or Witnesses whereof there seldom remaineth any Testimony in retentis The Lords would not reduce a Retour for want thereof But ordained the whole Inquest to be examined upon oath upon what Evidence they served Feb. 24. 1665. Sr. James Mercer of Aldie contra William Rowen A Retour being found null in one Head was found null in otum Hope 〈◊〉 Laird of 〈◊〉 contra A Retour of a Sister as Heir to her Brother was found null by Exception upon production of another Brother's Retour though posterior who thereupon was preferred albeit an excommunicat Papist Feb. 16. 1627. Lord Colvil contra Mr. Walter and Christian Herds And a Retour of a second Brother served Heir to his Father where the elder Brother was absent and repute dead but returning home again and granting Band to a Creditor who charged him to enter Heir and apprised and possessed the Retour of the second Brother was thereupon found null by Exception albeit twenty Years after the Date thereof though by the Act of Patliament 1617. cap. 13. Retours are not quarrellable by Reduction or Summonts of Error unless the same be intented execute and pursued within twenty Years after the Service and Retour in respect of the Apprising and Possession within these Years which import an interruption and that the second Brother's Retour was null by Exception and needed no Reduction January 11. 1673. Lamb contra Anderson A Retour was also annulled by Exception by referring to the Parties oath that he had no contingencie of Blood with the Defunct Feb. 10. 1636. Murray contra Sinclair and Meikle The like in the case of a Woman retoured sole Heir it being instantly verified that there was another Sister Hope Retour of Idiotrie Fairly contra Fairly The like was found by Reply referring it to the Partie's Oath that he was Bastard Spots Retours Murray contra Murray 43. Retours are ordinarly annulled and reduced by a great Inquest of twenty five Members who do enquire not only concerning the Verity and 〈◊〉 of the Retour but also concerning the Ignorance and Malice of the Jurantes super assisa which is not always inferred when the Retour is reduced As if it be found that the Defunct died not last vest and Seased as of Fee by instructing that he was denuded July 7. 1663. Isabel Mow contra Dutchess of Buccleugh Or that he died not at the Faith and Peace of Our Soveraign Lord by instructing that he was forefault or that he was not nearest and lawful Heir by instructing a nearer Heir is no Error in the first Inquest seing these points were presumed and needed no probation And in like manner if by Reduction there be a more pregnant Condescendence and Probation for another Partie than for the Heir served it will be no wilful Error unless competition had been at the time of the Service But it must be an evident and grosse Error in the positive Probation specially concerning the Death of the Defunct and his being once infeft the special Relation and Degree of Blood of the Heir his Age and the Extent of the Fee which though the poynt of least moment yet will annull the Retour But if there be a probable cause for the Inquest as by production of Writs containing wrong Extents they will be declared free of wilfull Error Spots Retours Mark Kerr contra Scot of Hartwoodmires The manner of reducing of Retours is by a Summons of Error against the Assysors before the Kings Council which is now the Lords of Council and Session Par. 1471. cap. 47. 44. Though it be the ordinary way to annull Retours by a great Inquest yet the Lords do sometimes sustain Reductions thereof as erronious by Witnesses before themselves without a great Inquest July 7. 1663. Isabel Mow contra Dutchess of Buccleugh 45. The Reduction of Retours being of such hazard to the members of Inquest it is statute Par. 1494. cap. 57. That they shall not be reducible but within three years after the Date so as to inter Error against the Inquest albeit they may be reduced as to render the Retours null in themselves at any time within twenty Years after they were deduced Par. 1617. cap. 13. Which Act reacheth only Retours after it but not Retours before and actions against the same which Prescrive by the general Act of Prescription Par. 1617. cap. 12. As was found November 28. 1665. Younger contra Johnstoun 46. The Heir being thus specially served and retoured if the Fee immemediatly hold of the King he doeth thereupon obtain Precepts out of the Chancery of course without Citation commanding the Judge ordinary of the Place where the Feelyes Sheriff or Balliff to give Seasine to the Person retoured capiendo securitatem taking Security for the Non-Entry and Relief due to the King for which the Judge ordinary is countable in Exchequer unless the Profites belong to himself as Bailiff of Regality If the said Judge ordinary do not grant Seasine accordingly the Lords upon Supplication and Instruments of his disobedience will grant Warrant to the Director of the Chancery to issue Precepts to an other Person as Sheriff in that part specially constiture without first using Horning against the Ordinary disobeying Spots David Balfour Supplicant These Precepts because of the Clause capiendo securitatem were found to make both the person of the Heir and the Ground lyable for the Sums due thereby though Infeftment was never
taken Spots Sheriff Laird of Stobs contra Laird of Lauristoun These Seasines are appointed to be given by the ordinary Clerk of the Jurisdictions Parl. 1540. cap. 77. Parl. 1567. cap. 27. Parl. 1587. cap. 64. If the Fee be holden of any other Superior than the King if he do not willingly grant Infeftment upon fight of the Retour the Heir will of course get Precepts out of the Chancery to charge the Superior to enter and infeft the Heir so retoured with certification if he fail he shall lose the benefite of the Superiority during his life containing also this Clause in favour of the Superior faciendo vobis quod de jure facere debet And upon Instruments of the Superior's Refusal or Delay being thrice required Precepts are directed out of the Chancery in course against his Superior to supply his place and if he should refuse the like Certification is competent against him and so Precepts are direct against his immediat Superior till at last it come to the King as supreme Superior who refuseth none but thereupon Precepts of Seasine are direct out of the Chancery to the Judge ordinary of the place to give Seasine 47. For preventing of the loss of the Superiority during life the Superior being charged if he obey not must supend the Precepts which is done most ordinarly upon this Reason that the Heir hath not satisfied the Relief and Non-entry Duties due to the Superior conform to the Clause of the Precept faciendo vobis c. Which Craig lib. 2. dieg 17. shows not to have been sustained by the Lords seing the Superior had poynding of the Ground competent therefore yet the custom since hath been contrary July 29. 1624. Laird of Capringtoun contra Laird of Keirs In which case Keirs being pursued to receive Capringtoun in place of Capringtoun's immediate Superior Foulshiels who being charged to enter Heir within fourty days to the Superiority that he might receive Capringtoun his Vassal obeyed not and therefore Keirs Foulshiel's Superior supplying his place was ordained to receive Capringtoun he always paying the Non-entry neither was Capringtoun the Sub-vassal put to take out Charges against Keirs as he had done against Foulshiels but this Action was summarly sustained The like July 16. 1628. Earl of Wigtoun contra Lord Yester March 12. 1630. Somervel contra Downie Where the Annualrenter craving Entry was not found lyable to pay the full Annualrent during the Non-entry but the Blench duty only And though in the Case of Peebles contra Lord Ross January 23. 1630. Peebles as Superior craving the Non-entry Duties for three Terms subsequent to the Ward to be payed to him by the heir craving Entry not according to the new Retour but according to the full Duties as being subsequent to the Ward was ordained to enter the heir without payment of those Duties without prejudice of his Right thereto Prout dejure the reason is rendered because the Duties were not liquid as the new Retour is neither was the case it self clear and unquestionable and therefore was only reserved If the Superior himself be not entered he may be charged to enter within fourty days with certification if he fail to lose the Superiority during his life conform to the Act of Parliament 1474. cap. 57. and if he fail his Superior may be pursued via actionis to supply his place and receive the Sub-vassal with the same Certification without necessity of charging him with Precepts out of the Chancery As was sound in the said Decision Capringtoun contra Keirs 48. The Certification of loss of the Superiority during the Superior's life though it would seem to extend to all the Casualties of the Superiority befalling after contumacy yet it was found only to extend to the Non-entry which was purged by the immediat Superior who supplied the place of the mediat Superior but that subsequent Wards and Liferent-Escheats did notwithstanding belong to the immediat Superiors March 24. 1623. James Hay contra Laird of Achnames In which Case it was also found that the Feu and Blench Duties contained in the Reddendo did no ways fall by the said Certification which is clear because these are not Casualities of the Superiority But whether these Casualities will not be lost during the life of the contumacious Superior as the Certification would import and will belong to the mediate Superior supplying his place is not so clear because if the negative hold the Certification which seems so great signifies nothing 49. The next Reason of Suspension of these Charges for entring of Vassals is That the Heir retoured doth not produce the ancient Evidents that the new Precept of the Superior for obedience may be made conform thereto This Reason was repelled November 14. 1609. Laird of Drum contra Laird of Ley. And though that might have been admitted because of old Infeftments were simple but now since they are clogged with many Provisions which fall under the Service of the Brieve there is reason that the ancient Evidences should be showen with the Retour and those Provisions in the Precept offered to the Superior otherwise the said Provisions may become ineffectual because these Precepts and Infeftments thereupon will be sufficient Rights without showing any elder And seing it is the Vassal's duty to show his Holdings to the Superior there can be no time so sit as at the Entry A third Reason of Suspension of these Charges useth to be upon the Superior's Right to the Property by Recognition or upon Improbation of the heir's Retour Which if Decreet be not past thereupon will be repelled and only reserved as accords but will not be sustained upon a Reason of prejudiciality of a Reduction at the Superior's instance Spots Sheriff Laird of Taich contra Hume Craig lib. 2. dieg 17. moveth this Question When one Person is the Feer and another Liserenter of the Superiority by Reservation of his Frank-Tenement or Liferent and the like is when Liferentis by Conjunct-fee Of whom in that Case ought the Heir crave to be entered In which he relates that the Lords in favour of the Vassal found in the Case of Cransioun Brother to the Laird of Cranstoun That the Heir might enter by any of them he pleased being without detriment to either of them As to the Casualities of the Superiority how far such Casualities belong to Liferenters Vide Title Liferents 50. There is another weighty and subtile Question in the Enty of Heirs Whether that Person who falls to be nearest Heir at the time of the Defunct's decease may not then be entered though there be a nearer in possibility or in hope There is no question but when a nearer Heir is really or probably in Being in the Womb though unborn that the Service must be stopped till the Birth For in all things working in favour of those unborn they are accounted as born and that not only for presuming that there is a living Child not a salfe Conception but presuming that it is