poinded before by a third party for a Debt Hope poinding Paterson contra Patrick Adam 10. In poinding of the Ground the Proprietar the time of the Summonds must be called albeit his Infeftment be base but not the Superiour January 19. 1636. Oliphant contra Oliphant And is sufficient to call the Wodsetter without the Reverser February 1. 1631. Gilbert Williamson contra Hendrie Cunninghame The Tennents also must be called in so far as concerns their Goods but the present Heretors and Tennents being once Discerned the Decreet will be effectual against all singular Successors and subsequent Tennents without a new Decreet of Transferrence Hope poinding of the Ground Forrester contra Tennents November 21. 1628. Watson contra Reid June 26. 1662. Adamson contra Lord Balmerino But poinding of the Ground upon Annualrents may proceed summarly without declaring the Right in a petitorie Judgement though the Annualrenter hath not been in possession for seven years and a posterior Annualrenter in possession seven years was not found preferable because Annualrents being debita fundi have neither prejudice nor profite by Possession as in a possessory Judgement which is only competent upon Infeftments of Property or Tacks January 9. 1668. old Lady Clerkingtoun contra Clerkingtoun and the young Lady And a poinding of the ground may proceed against the appear and Heir without a Charge to enter Heir January 2. 1667. Oliphant contra Hamiltoun 11. As to the Ground-right and Property of the Land Appryzing upon Infeftment of Annualrent is not only effectual against the Proprietar but against any other Appryzing for personal debt and Infeftment thereupon being after the Original Infeftment of the Annualrent though before the appryzing thereon Hope poinding and appryzing Tennents of Clunie contra Tarachtrie Slowand and Glendoning And it is the singularity of this Right that the Infeftment of Annualrent being once Established appryzing thereupon will be preferred to all interveening Rights and Diligences even though they proceed upon posterior Infeftments and Annualrents And though by the late Act of Parliament Appryzings within year and day come in pari passu there is an express exception of Annualrents and therefore an appryzing proceeding upon a personal Obliegement and Requisition both for Principal and Annual and within year and day of other appryzings the Appryzer was allowed to pass from his appryzing as to the Annualrents prior to the Appryzing and these were preferred to all the appryzings and his appryzing was brought in pari passu for the Principal sum and Annualrents after the appryzing December 22. 1671. Campbel contra Yea an Infeftment of Annualrent being betwixt the first effectual appryzing and the subsequent appryzings within year and day was brought in pari passu with these appryzings as to the whole right as being in a matter dubious upon a new Statute the Annualrenter having rested thereupon and not having appryzed for his principal sum which if he had done he would clearly have come in pari passu February 6. 1673. Brown of Colstoun contra Edward Nicolas There is a case proposed by Sir Thomas Hope viz. If one having Right to some years of an Annualrent by Liferent or otherways should appryze for these years and that appryzing expyre whether that appryzing expired will carry the right of Property not only from him who constitute the Annualrent but from the Fiar of the Annualrent himself so that the Infeftment of annualrent should become extinct which seems to be resolved affirmatively because of the nature of the Right for the Infeftment of annualrent being jus sed ignobilius becomes extinct if the annualrenter there upon do appryze the Property and be Infeft and therefore whoever appryzeth for years of the annualrent the Infeftment thereof unless it be taken away by satisfaction or redemption extinguisheth the Infeftment of annualrent without distinction whether the appryzing be led for any years belonging to the Fiar Liferenter or any other and whereas the difficulty seems to be that the Liferenter cannot prejudge the Fiar of the annualrent or appryze more from the Fiar of the Land than he had It is answered the Fiar needs not be prejudged because he hath a virtual Reversion and might thereby redeem from the Annualrenter and take the Liferenters Right Neither doth the appryzing exclude the annualrent it self as to years posterior by the Tenor of the appryzing but by the nature of the right constitute to that very end that an Apprising for any years of the Annualrent is drawn back ad suam causam viz. The original Infeftment of the Annualrent and so excludes all posterior Infeftments and therefore extinguisheth not only these but even the Infeftment of Annualrent it self ceaseth by accession of the property ut juris nobilioris but if the Fiar of the Annualrent were neglective in so dubious a case it is like the Lords would repone him satisfying the Liferenter In the case of competition the Infeftment of Annualrent it self will be preferred to the posterior Rights though no Apprising followed January 29. 1635. Sir James Hamiltoun of Brownhill contra Wilson Infeftments of Annualrents have the priviledge and preference though they be made use of by way of competition without Apprising thereupon Yea though requisition was made and an Apprising led upon the Sum whereunto the Annualrent was accessory yet it was found the Appriser might pro loco tempore pass from that Apprising and upon the Annualrent it self be preferred January 24. 1663. Robert Graham contra John Ross. 12. But as to apprising of Moveables or Rents the Lords use in competitions to give so much time to the first Annualrenter and so to the rest after each term that they only may poind and so they decerned the first Annualrenter to poind within twenty dayes of each term and the second within the next twenty dayes Feb. 15. 1662. Ladies Mouswall elder and younger competing The like allowing the first Annualrenter fourty dayes after each term July 26. 1662. Sir John Aiton contra Adam Wat. But as to the Apprising of the Property the first Annualrenter may apprise when he pleaseth and then is preferable to all others but the regulating of the poinding of Moveables is in favour of the poor Labourers The like June 26. 1662. Adamson contra Lord Balmerino where it was found that the Annualrenter might affect any part of the ground in solidum albeit now belonging to several Heretors but so as the Heretor of the ground affected behoved to have Assignation to the Decreet for obtaining relief 13. Annualrents long ago had no effect but poinding of the ground and could not come in to hinder Arresters of the duties for the Proprietars debt March 24. 1626. Gray contra Graham but thereafter were ordained to be a sufficient Title against all intromettors with the Duties personally March 15. 1637. Richard Guthrie contra Earl of Galloway Annualrents were found lyable to publick Burdens proportional with the superplus Rent belonging to the Fiar June 23. 1675. David
shall not insist in these because the common Custome of Nations hath refiled therefrom following rather the Canon Law by which every paction produceth action omne verbum de ore fideli cadit in debitum C. 1. 3. de pactis And so observeth Guidilinus de jure Nov. l. 3. cap. 5. § ust and Corvinus de pactis we have a special Statute of Session November 27. 1592. acknowledging all pactions and promises as effectual So it hath been ever decided since January 14. 1631. Sharp contra Sharp 8. And even pactum corvinum de haereditate viventis is found binding though among the most odious July 6. 1630. Mr. James Aikenhead contra Both we l. But pactum de quota litis whether it be a naked Paction or Promise or a mutual Contract is rejected both by the Civil Law and our Custome whereby Advocats in place of their Honorary take a share of the profit of the Plea to prevent the stirring up and too much eagerness in Pleas which was extended to an Agent or Writer if he had made such a Paction before or during the Plea but not after all Plea was ended having given Bond to an appear and Heir to denude himself of a Right he had acquired for Sums of Money getting his expenses and a fourth part for his pains and hazard February 24. 1675. Catharine Home contra Mr. Archibald Nisbit Writer Yea an Advocat taking Assignation to a part of a Plea it was found pactum de quota litis and Process was thereby excluded though proponed by the Debitor and not by the party with whom the Paction was made but it was not found probable by that parties Oath alone as being but one Witness June 23. 1680. Edward Ruthven contra Mr. William Weir Pactions for Money played or other Prize played at Games of Fortoun such as Cards Dice c. found valid as to the Debitor but the excress to be consigned for the use of the poor if it exceed an hundred Merk by the Act of Par. 1621. cap. 14. Nevember 12. 1668. Patrick Park contra Nicol Somervel Instead of the remeids of Stipulation the inconveniences that rejected naked Paction among the Romans are remeided with us by this means 9. First If the matter be of great Moment and which requireth to its perfection solemnity in Write all such Agreements Promises and Pactions are accounted imperfect and not Obligator untill Write be subscribed such as Dispositions of Lands and Heretable Rights Tacks Rentals and Assignations to Writs c. In all which there is locus penitentiae even after the agreement and either party may resile till the Write be subscribed and delivered It was so found though the buyer by a missive Letter wrote that he thought he would not be able to furnish the Money but that he would not pass from the communing seing there was no minute nor obligation otherways January 20. 1663. Sir Robert Montgomery of Skermorly contra John Brown So was it also sound that a Cautioner subscribing a Bond might resile before it was delivered by him though it was subscribed and delivered by the Principal and other Cautioners before March 5. 1628. Megil contra Thenilstoun The like of a Disposition subscribed and left in the Writers hand to frame a Charter by and a promise made after to abide by it seing there was no delivery to the party nor to the Writer to be given to him Laird of Innerleith contra Byres The like of a bargain of Land agreed upon by Word some things being done by the buyer in contemplation thereof being restored October 5. 1628. Oliphant contra Monorgan The like in a Tack for years which was found to endure but one year though the Tacks-man was thereby in Possession January 24. 1630. Lowry contra Ker. July 16. 1636. Keith contra his Tennents Yet a verbal Tack for a year found not to be past from seing the Tennant was thereby in Possession and had been warned Hope Process John Adamson contra John Fullartoun Neither was it found competent to pass from a verbal Rental where the Grassoum was payed Nicol. de migrando Angus contra Mckie Neither to pass from a Rental delivered to the Chamberlain to be given to the Tennants upon payment of the Grassoums in so far as concerned these Tennants who had payed a part of their Grassoums Nic. Removing Eglintoun contra his Tennants Neither was place found to resile from a Transaction verbal seing a considerable part of the Soum Transacted for was satisfied February 25. 1679. Kings Advocat contra Earl of Nithisdale Neither is there locus poenitentiae in pactis liberatoriis where any Right is past from or restricted and no new Right to be made December 5. 1661. Hellen Hepburn contra Sir James Hamiltoun of Orbistoun The like in restricting an Annualrent to a part of Lands affected therewith February 8. 1666. Ker contra Hunter locus poenitentiae was found competent to a defender who produced a Right granted by the Charger with a blank Assignation to instruct compensation which he got up before it was delivered to the Charger or any Decreet thereon and no minut of the Decreet being extant the suspender was found in tuto to make use of the Right compensed on December 9. 1674. Lord Balmerino contra the Tennants of Northberwick and Creditors of Sir William Dick. Yea locus poenitentiae was found competent to resile from a bargain which might have been valid without Write because it was expresly agreed to be redacted in Write January 12. 1676. Robert Campbel contra Robert Dowglas The other remedy we have in stead of Stipulation is that by a Statute of Par. 1579. cap. 80. all Writes of great importance are to be subscribed by the party or by two Nottars and four Witnesses wherein custome hath interpret matters of importance to be that which exceeds an hundred Pound Scots and it is so far extended that in matters where Writes may and uses to be adhibit probation is not admitted by Witnesses but only by Oath of party or Write by these remeids very necessarly introduced the inconveniencies foresaid are sufficiently caveat 10. But to inquire whether Promises or naked Paction are morally Obligatory by the Law of Nature few do contravert yet Conanus l. 1. C. 6. l. 5. C. 9. holdeth that Promises or naked Pactions where there is no equivalent Cause Onerous interveening do morally produce no Obligation or Action though in congruity or decency it be fit to perform least it be an argument of Levity against which there is not only the Testimony of the Canon Law which insinuats an anterior Reason to its own position but also the Civil Law l. 1. ff de pactis there is nothing so congruous to humane trust as to perform what is agreed among them and the Edict de constituta pecunia saith it is suitable to natural Equity and saith farther that he is debitor by the Law of Nature who must pay by the Law of Nations whose faith we
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
are not wakened every five years for such prescrive in ten years by the Act 9. Par. 1669. The exceptions of removing at the instance of the Master of the ground are very frequent and various for it is ordinarly proponed and sustained that the Defenders are Tennents by payment of Mail and Duty to a third party who is not warned nor called neither are they put to dispute their Masters Right to be valide which holdeth whether his Right be an Infeftment Liferent-right or Tack and though the Tennent hath been put to condescend what the Right is and that in specie it is a valide Right though he needs not dispute the particular defects of it nor the competition of it with any other Right That hath been done that the pursuer might know how to quarrel their Masters Right but I have never observed that Litiscontestation has been made or a Term assigned to Tennents to instruct their Masters Right therefore this defence is but dilatory and should not be sustained unless instantly verified by Tacks or Discharges from the alledged Master which would be repelled if the Tennents have interverted the pursuer or his authors Possession or if the pursuer were singular Successor not presumed to know any interest but of the Possessors if the Tennent produce his Masters Seasine with his Tack or Discharge it would instruct this Dilator which is sufficient upon the not calling the Tennents Master for his not being warned is proper for himself to alledge and the partie will in the same Process get warrand to cite that Master who must defend himself upon his own Rights and therefore this defence was sustained to Tennents though they condescended upon no other Right to their Master but tacite Relocation December 2. 1628. Mr. Walter Whitefoord contra Laird Johnstoun It hath also been sometimes sustained that the defenders were Tennents by payment of mail and duty to an Appryzer though not Infeft Hope hic Crawfoord contra Brown This exception is also elided by this reply that the defenders had acknowledged the pursuer by payment of Mail and Duty Nicol hic Lady Evandale contra her Tennents It is also elided by alledging that the defenders Masters Right was reduced at the pursuers instance December 12. 1622. Spading contra Fleming The like where his right was reduced at the instance of the pursuers author Spots hic Maxwel contra Tennents of Glassock Earl of Nithisdale contra his Tennents The exceptions against removing upon the defenders own right are either in respect of his right to the Land in question or to the other Lands brooked by him pro indiviso with it For the first there are as many such defences as there are rights competent for defending possession and they are either founded upon the benefite of a possessory judgement which how conpetent may be seen at large Title Infeftment 13. § 82. which needs not to be repeated Or if that be not competent the defender must found himself upon the point of right which ordinarly infers a competition of rights But in either case the defence will not be sustained upon any right if the possession was not attained there upon bat upon the pursuers right which Possession must be restored and the defender left to his action upon the others right as accords as if after redemption of a temporary right whereby the defender entered in Possession he should defend upon another right which will not be sustained in this possessory judgdement against him or his Successor from whom he had the Possession November 22. 1677. Sir Archibald Stuart of Castlemilk contra Duke of Hamiltoun The exception pro indiviso is very pregnant and taketh not only place in solemn removings but in the Action to find Caution for Mails and Duties or to remove though the Excipient had taken Tacks from the Pursuer December 6. 1623. 〈…〉 contra Carmichael Yet it was not found relevant to stop removing from the pursuers part of a Coal-heugh in Lands undevided because the Coals are divisible by measure as they are raised out of the Coal-pot Spots removing Hugh Somervel contra Dickson Neither was it found sufficient to maintain a Relict in possession of a House which could not be divided whereof she had a third part and possest the other two thirâ—s pro indiviso but the Fiar having the two thirds was to be preferred to the Poâ—â—ession paying her the third of the Mail upon condition that if he seâ— the Tenement she should be preferred giving as much Mail as another January 26. 1665. Legan contra Galbraith The last exception against removing is obedience by voluntary removing conform to the warning and leaving the Land void and red at the Term without necessity of a renunciation in write March 2. 1637. Keith contra Simpson The like the defender finding Caution to desist from the Possession Nicol. de migrando Wallace contra Mitchel But the alledgeance of obedience was not found relevant upon an exception bearing that the Land was left void and red at the Term seing that it bore not that the Possession was offered to the Charger in respect that at the time of his removing another party entered in his Vice January penult 1624. Greenlaw contra Adamson But the obedience must be full according to the warning by the defenders removing himself his Family Sub-tennents and Cottars Goods and Gear So that the pursuer may enter in Possession and therefore Decreet would be obtained against the principal Tacks-man and the Letters still put to execution against him till all these be removed and if the pursuer please he may pursue them to remove without other warning then what was made to the principal Tacks-man So it was sustained against a Son upon a warning against his Father even after his Fathers death January 26. 1630. Hoom contra Hoom. As to the last point concerning the effects of Decreets of Removing it is not only the attaining Possession of the Land it self but sometimes also the Corns growing thereupon as being a part thereof being a Possession violent Hope Spuilzie John Elliot contra Lord Balcleugh Yea of the Hay of that Cropt though separate and Stacked by the person removed Hope Spuilzie Sir James Balmuire contra Williamson But the main effect is the obtaining the violent profites of the Land until the possessors obedience and that both against these who are warned and against these who succeed in the vice of warned or removed Tennents 44. Violent profites are so called because they are such profites as are due by and for violent Possessioa whatsoever way it be by warning and removing ejection intrusion or succeeding in the Vice and they are opposite to ordinary profites which were due by tacit Relocation or were formerly accustomed to be payed Violent profites are pursued for by a several Action after the Decreet of removing is obtained Wherein the Decreet of removing is both a sufficient Title and probation of the violent Possession against the parties
poynder as was formerly found relevant Hope arrestment Doctor Kinloch contra Halyburtoun Iames White contra Robert Blackater Ian. 20. 1672. Iohn Bell contra Fleming and Watson It is also a relevant Exception that the ground of the arrestment or the sum arrested was Heretable before the Act of Par. 1664. Or since that Infeftment hath passed upon either unlessit be made moveable and therefore arrestment being laid on upon sums consigned for a redemtion was not found effectual till Declarator of redemption pass which only makes the sums moveable and during the dependance of the redemption these sums cannot be arrested as belonging to the user of the Order because they come in place of the Lands redeemed and can belong only to the Wodsetter or Appryzer or any having right from them to the Lands Wodset but after Redemption the sum consigned may be arrested and made forthcoming for payment of the Wodsetters debt Spots Arrestment Hepburn contra Hay It is also a competent exception that the thing arrested is a proper Aliment Expresly Constitute and not exceeding the measure of Aliment Novem. 19. 1622. Thomas Donaldson contra Kirkaldie and Barclay And the Fee of a Servant was not found arrestable in so far as it was necessary for the service he was in but only for the superplus more then was necessary for his Aliment in such a service July 9. 1668. Heugh Begg contra Robert Davidson Preceptor of Heriots Hospital The like holds in the Kings Pensions and Fees of His publick Ministers Lords of Session and others which are not arrestable in the Thesaurers hands by Act of Sederunt 1613. and was so found in the case of Sir Robert Murray Justice Clerk a part of whose Sallary was arrested Feb. 8. 1662. 38. When pursuits are for making arrested Goods forthcoming which are not liquid the party in whose hands arrestment was made will not be decerned for making forthcoming a liquid sum for the price But if he offer the Goods ipsa corpora the Decreet will contain a Warrand to the Magistrates of the place to rope the Goods arrested that the price thereof may be delivered to the arrester Novem. 12. 1680. Stevinson contra Sir John Paul Appryzing and Adjudication of Heretable sums whereupon Infeftment hath not followed being little in use though competent since the Act of Parliament 1644. We shall say no more of it in this place but as we have considered these several ways of Transmission of Personal Rights severally we shall now consider them joyntly as they fall in competition for preference amongst themselves and each with others 39. In these Competitions it must be considered that arrestment doth constitute no Right in the Arrester but is only a legal Prohibition to alter the condition of the thing arrested and to pay or deliver the same to the Arresters debitor but that it may remain in his hand for satisfaction of the debt arrested for And it is only general arresting all sums of Money or Goods in the hands of the party in whose hands it is laid on due or belonging to the arresters debitor for satisfying of the debt whereupon the arrestment proceeded and therefore cannot be of more effect then a denunciation of Lands to be appryzed or a Citation on a summonds of Adjudication and therefore doth Constitute or Transfer no Right but is a legal diligence rendering the subject matter arrested litigious so that the party in whose hands the arrestment is made cannot alter any sums or debts belonging to that debitor in prejudice of the debt arrested for until the Arrestment be loused and Caution found for the debt or Decreet absolvitor or declarator be obtained excluding the arrestment And if he do any thing in the contrary it infers breach of Arrestment confiscating his Moveables and he is lyable as if the sums or goods remained in his hand pro possessore habetur qui dolo desiit possidere And though the Arrestment have no intimation to the Arresters debitor or any of his Creditors yet if any of them recover the sums or goods arrested by the Collusion or neglect of the party in whose hands arrestment is made he will still remain lyable and if he have not acted bona fide he will incur the breach of arrestment as if by Collusion and gratification he or his procurator whose deed will be presumed his oppose the arrester and procure delay to compear and depone and acknowledge the debt or he holden as confest to another arrester neither will he be liberat by offering his oath that he gave no such Warrand for the imploying a Procurator is a sufficient Warrand for all the common course of Process and requires no special mandat Yea if he pay or deliver to any other arrester or even be poynded upon a Decreet at his instance he will not be liberate seing he ought to have raised a Process of multiple poinding calling the debitor and all the arresters or assigneys to dispute their several rights that once payment to the party found to have best right might liberate him yet if he have payed he does thereby without a direct assignation come in the place of the party to whom he hath payed and if he can show that parties right is preferable to the arrester insisting he will be heard thereupon And unless it be found that he proceeded warrantably not only will he be decerned to make forthcoming though it infer double payment but he to whom he payed unwarrantably will be compelled to restore and satisfie the arrester the subject having been litigious by his arrestment before the other party recovered the same albeit he have recovered payment bona fide without any fault in him but by the litigiousness of the subject For payment made bonafide with a preferable Right relieveth only the payer who was or might have been compelled to pay being conscious of no other Right For it is not relevant for the party obtaining payment bona fide nor will that ground of Law secure him qui suum recipit licet a non debitore non tenetur restituere which holds only in voluntary payments a non debitore and where the subject is not litigious Upon the same ground albeit the party in whose hands arrestment is made collude not but do equally passive or equally oppose the Competitors Yet if the debitor collude and propone Defences against some of the Competitors and not equally against all and thereby procure delay and Terms to prove if he succumb though another pursuing in a several Process before the same or different Judge obtain Decreet and payment thereupon yet he will be necessitate to refound if he had not a preferable Right 41. If the party in whose hands arrestment was made appear and offer to depone if the pursuer suffer him to depone generally that the time of the arrestment he had neither Goods nor Sums belonging to the Debitor in his hands the arrester will not ex intervallo obtain him to be more
particularly interrogate ad vitandam frandem perjurium but if before or at his oath given in general there be special interrogators offered by the party or the Judge whether at any time in his hands sums or goods belonging to the arresters Debitor and how and when he satisfied or delivered the same he will be holden as confest unless he depone particularly that he be not his own Judge as to the time when he was due or when he ceassed to be due For he may pretend or imagine that the time of the arrestment he was not debitor because he had payed to an Assigney whose Assignation was prior to the arrestment albeit intimation was not prior though he had promised payment before intimation yet he could not thereupon have been compelled to pay it if before payment an arrestment had interveened because his promise could be but understood to be according to the parties Right ' to whom he promised which he could not quarrel but if another did exclude that party he could not be lyable to double payment albeit he had given a Bond of Corroboration unlesse the Assigney had offered to intimate and he had hindered the same as unnecessary and promised payment for then through his own fraud or fault he would be lyable to pay both parties and therefore the promise of payment was only found relevant to exclude an Arrestment after the promise to be proven by the Oath or Write of the Arrester and not of the Promiser or party to whom he promised yet if the Promise were not so proven and thereby the Arrester were preferred the party promiser in whose hands the Arrestment was made was declared free of the promise unless there had been Transaction or that the promiser had undertaken the hazard Mr. James Elphingstoun contra George Home and the Laird of Steonhope December 11. 1674. 22. That which Transferreth the Right is neither the Arrestment the Citation nor any thing in Process but only the Decreet for making forthcoming which is in the same conditions as to Subjects arrestable as Appryzings or Adjudications are to others which do not import full satisfaction of the Debt and do not fully liberate the Debitor but that other diligences may be used for the same debt unless he possesse till the legal expyre and in the same way after Decreet for making forthcoming the Arrester may use other Diligences but in competition with other Creditors using diligence he may not exclude them and keep up his own diligences but hath his option thereof Seeing the Arrestment maketh the Subject Arrested Litigious it hath the common effect necessarly introduced by Law in re Litigiosa that Inchoat diligence cannot be excluded either by the voluntary deed of the Debitor or by any legal diligence posterior unless the user of the first Inchoat diligence become negligent Nam vigilantibus non dormievtibus jura subveniunt The application of these Grounds will easily clear the preference in the competition of Arrestments with Assignations or of Arrestments with Arrestments 43. And as to the Competition betwixt Assignations and Arrestments an Assignation duely intimate is a full and compleat Transmission of the Right assigned if by its nature it be assignable and thereby the right of the Cedent ceasseth and the Assigney becomes Creditor and hath no necessity of any further diligence to compleat the Right Therefore no posterior Arrestment will be preferred to an Assigney if the intimation be before the Arrestment which is accounted not only by dayes but by houres But if the intimation and execution of the Arrestment be both in one day and express no hour if the Arrester be not negligent they will come in pari passu because no priority doth appear Spots Debitor and Creditor Mr. Cornelius Ainsly contra 〈◊〉 Edward which will hold in the competition of diverse Arrestments or diverse Assignations where no priority doth appear for we have little respect to the anteriority of debts in competition but to the anteriority of diligence as is evident in Appryzings and Adjudications 44. But if the Arrestment be prior to the Intimation the Arrestment is preferable if it fail not in diligence and therefore an Arrestment was preferred to an Assignation intimate the same day but two hours thereafter January 30. 1629. Davidson contra Balcanquel Yea an Arrestment upon a dependence was preferred to a posteriour Assignation though intimate half a year before sentence upon that dependence Hope Assignation It must be in the discretion of the Judge to determine when Arresters fail in diligence 45. And as to Intimations they are inquestionable if done by Instrument or by Charge of Horning at the instance of the assigney upon the assignation because the Letters bears that the assignation was produced to the Judge passer of the Bill and there is little doubt that assignations attaining effect by Possession will be in the same case as if intimate by Instrument Or if Bond of Corroboration be obtained upon the assignation or Discharges instructing payment of a part of the debt assigned Or if in Process the Assignation be Judicially produced but the case is not alike nor have I observed it decided if Citation before the Assignation be Judicially produced will exclude an Arrester medio tempore 46. As to the competition of Arresters the first Arrestment not failing in diligence is preferable and therefore the first Arrester was preferred though prior but by one day though both obtained Decreet upon the same day and both used full Diligence February 1. 1666. Collonel Cuninghame contra Layel And likewise an Arrestment by Letters from the Lords of Session and first Citation thereupon being insisted in without negligence was preferred to a posterior Arrestment though obtaining the first Decreet before a Sheriff in respect that Decreets before the Lords cannot be so summarly obtained especially seing they must abide the course of a Roll November 23. 1677. Sir Robert Montgomery contra Alexander Rankine And a posterior Arrestment was preferred to a prior in respect the Term of payment of the sum for satisfying of which the first Arrestment was laid on was not come at the time of the first Arrestment but before the second Arrestment was laid on the Term of payment of the sum for which it was laid on was past albeit the Terms ofboth sums were past before the competition came before the Lords by Advocation July 29. 1670. Charles Charters contra Cornelius Neilson July 17. 1678. Lord Pitmaiden contra William and Robert Patersons And for the same cause Arrestment upon a Decreet may be preferred to a prior arrestment upon a dependence because the ground of the former hath paratam executionem and not the ground of the latter Yet an Arrestment upon a Dependence was preferred to a posteriour Arrestment obtained upon production of a Registrable Bond before it was Registrate and so was not raised upon a Decreet Hope Arrestment Thomson contra Memorran And arrestment laid on after the Term of payment
against the lawful possessor to alledge he had a good Title to these goods and possession of them but he must condescend quo modo desiit possidere by Spuilzie Stealth c. Or that he gave them only in grassing and custody and continued to use Acts ofProperty the reason whereof is because in the Commerce of moveables write useth not to be adhibite and it would be an unseparable labour if the acquirer thereof behoved to be instructed by all the preceeding acquirers as if one should instruct that he bought or bred such goods some years agoe the present possessor behoved either to instruct a progress of them through all the hands they passed from the first owner or lose them which being destructive to Commerce Custom hath introduced this way that possession being present and lawful presumethproperty without further probation unless the pursuer condescend upon a clear probable way of the goods passing from him not by alienation as if they were spuilzied stolen strayed c. Feb 3. 1672. Scot of Gorrenberry contra Eliot In which case the Lybel was only found relevant to be proven by the defenders oath that he had not bought or acquired the goods bona fide Or that the goods were in a Defuncts possession the time of his death February 24. 1672. Semple contra Givan In which case a Defuncts goods were restored albeit they were long possessed after by his Wife and impignorate by her and her second Husband without Confirmation the Children of the Defunct Husband recovered the same from the Acquirer The passing from the Proprietar must be so evidently instructed that there may no probability remain of their being recovered and thereafter alienat Upon this ground it was that Sir John Scot pursuing Sir John Fletcher for a Book delivered to him The Lords found the Lybel not relevant unless it were condescended quo modo the pursuer delivered the same viz. by Loan and would not put the defender to prove gifted but presumed his Title unless the contrary were proven by oath or witnesses Jan. 27. 1665. And in a Process for Jewels at the Instance of John Ramsay contra James Wilson who had them from Mr. Robert Byres the Lords found that the presumptive Title of the defender and his author was elided upon the contrary presumption that Jewels of such value could not be bought bona fide seing the seller was neither Merchant nor Jeweller nor the Jewels fit for his proper use and because it was offered to be proven he took them at his own hand out of the pursuers possession to whom they were impignorat by write by the Proprietar who immediatly went out of the Kingdom The most ordinary and important conveyances are of Lands and Annualrents which pass by Infeftment for perfecting whereof there must not only be a Disposition but also a Resignation in the hands of the Superiour and new Infeftment granted by him to the Acquirer thereupon or by Confirmation or for obedience upon Appryzing or Adjudication For disposition of Lands to be holden of the granter do not transmit the granters Right because he continues Superiour in the direct Dominion but it becomes an Original Right constituting a new subaltern Infeftment Resignation is either in favours of the Superiour himself for consolidating of the Property with the Superiority and therefore is called Resignation ad perpetuam remanentiam Or it is a Resignation in the Superiours hands in favours of the Resigner himself or infavours of an Acquirer and therefore is called Resignation in favorem The first of these is no transmission but an extinction of the Fee and hath been spoken to in that Title The second is not properly a transmission because it passeth not from but returneth to the Resigner yet ordinarly under diverse Considerations as when he resigns from himself and such heirs in favours of himself and other heirs or when he resigns a Ward holding that it may be returned blench or few for the right understanding of Resignations in favorem consider the solemnities requisite thereto and the effect which flow from the several steps thereof For the first a Resignation must proceed upon a Disposition or Procuratory of Resignation having in it the effects of a Disposition which must be in write for the Instrument of Resignation being but the assertion of a Nottar will not be sufficient alone without an adminicle in write and though Resignation propriis manibus can have no Procuratory yet the Disposition whereupon it proceeds must be shown The second step in Resignation is the Act of Resignation it self which necessarly must be by way of Instrument of a Nottar expressing the warrand of it viz. the Disposition if it be done by the resigner propriis manibus or the Procuratory if it be done by a Procurator and that conform thereto the Resigner or Procurator compeared personally before the Superiour or his Commissioners having special warrand to receive Resignations and that the Resignation was made in the hands of the Superiour by Staff and Bastoun delivered by the Resigner or his Procurator to the Superiour as the token or symbol of the thing resigned and that the same was accepted and received by the Superiour or his Commissioners by taking the said symbol in their hands for new Infeftment to be given to the Acquirer and though the Resignation useth to be made by the Vassal or his Procurator on their knees and so is exprest in the Instrument either generally or specially with all humility and that the superiour or his Commissioner use to deliver the Staff as the symbol of the Fee to the Acquirer which is also exprest in the Instrument yet these are not essential but that without the being or expressing of the Instrument will be valid The last step of this transmission by Resignation is the Superiour or his Commissioners giving new Infeftment to the Acquirer the nature and requisites of which Infeftment hath been exprest before in the Title Infeftments The Solemnities of Resignation are so effectual and necessar that the omission of any of them annulleth the Resignation and therefore Renunciation without a formal Resignation though it may be sufficient against the Renuncer yet it is not sufficient to take away Infeftment renunced against singular successors Nor can it constitute any real Right in the person of the Acquirer unless he had aliunde another right standing in his person in which case the Renunciation might exclude the Renuncer or his Heirs to quarrel that right Hope alienation Hamiltoun contra Mcadam The reason thereof is because jura eodem modo destituuntur quo constituuntur and therefore as Infeftments cannot be constitute without an Instrument of Seasine so they cannot be destitute without an Instrument of resignation or at least another Instrument of seasine with the superiours Confirmation or upon his Charter for obedience so that renunciation being personal operats nothing except in the case of Wodsets which are extinguished by a renunciation registrate by the Act of
Dative who ordinarily seek the Office and offer themselves both the diligence accustomed by provident men and such as they use in their own Affairs may be justly required By the Law all Tutors were lyable pro dolo culpa negligentia l. 33. de Administratione periculo tutorum c. 22. That Tutors are lyable not only for what they did intromet but what they might have intrometted with by diligence and particularly of Rents of the Pupils Lands wherein his Predecessors died infeft and in possession though the Pupil himself was not infeft was found January 26. 1628. Commissar of Dunkel contra Abercromby Yet a Tutrix found only lyable for her intromission in respect she continued but some Moneths and the place where the Minors Goods were was infected with the Plague Hope de tutoribus William contra Allan Cathcart neither was a Tutor found lyable for a Sum due to the Pupil as not doing diligence by Horning and Caption for uplifting thereof unless it were alledged that by diligence he might have recovered it and that the Debitor was become worse July 2. 1628. Hamiltoun contra Hamiltoun The like where the Tutor offered to prove by the Neighbourhead that the Debitor during his Tutory was repute and holden insolvent February 6. 1623. Watson contra Watson 23. Contutors both by the Civil Law and our Custome are lyable in solidum and so some of them were decerned for the whole though the rest were not conveened February 22. 1634. Davidson contra Jack they were also found lyable in solidum though they had divided the Tutory among themselves but if the same were divided by the Testatour or a Judge the Tutors are only lyable for their share and not for the rest unless they have by Fraud and supine negligence omitted to pursue the other suspect Tutors to be removed l. 2. Cod. de dividenda tutela The benefit of the order of discussing competent of the Law whereby the Tutors who did Administrate were only lyable for their parts primo loco if the rest were solvendo l. 3. C. de dividenda tutela and that they should be first discust who had Administrate and intrometted before them who had neglected or forborn Ibid. These our Custome followeth not yet a Tutor was not found to have Interest to cause the Con-tutors find Caution to warrand him for their acting without him or against his mind where they did out-vote him or else to quite the Tutory but was left to his ordinary course to remove them if they malversed June 27. 1672. Mr. James Stirling contra his Con-tutors Tutory is finished First by death either of Tutor or Pupil Secondly By the Marriage of a Tutrix Testamentar which no provision even of the Testator can dispense with Thirdly By the Tutors renouncing the Office after which though he were Tutor Testamentar he cannot resume the Office July 6. 1627. Campbel contra Campbel but forbearance for six or seven years doth not extinguish the Office of a Tutor Testamentar by the former Decisions The like December 17. 1631. Auchterlonie contra Oliphant Fourthly By Fury Lethargy or any natural defect of the Tutor rendring him unable to exercise his Office Fifthly And most ordinarily by the Pupils running his Pupilarity which in Men is fourteen years and in Women twelve But if the Tutors continue to act till Majority they are lyable as Curators yet the express Appointment of the Defunct that the Tutors continue Curators cannot extend the Tutory after Pupilarity or hinder Election of Curators February 6. 1633. Harper contra Hamiltoun Tutors or Curators appointed to furious Persons their Office ceaseth when the fury fully ceaseth for though they have Lucide Intervals in which acts done by them without their Tutors are valide yet their Tutory ceaseth not as to the Acts done in their Furiosity 25. The Tutory appointed to Idiots and Furious Persons is prescribed by Act of Parliament 1585. cap. 18. Whereby the nearest Agnats or Kinsmen of Natural Fools Idiots or Furious Persons should be served received and preferred to their Tutory and Curatory according to the Common Law where by the Common Law the Civil Law is understood and though the Act seems only to hold out Tutors of Law where any are served yet seing it is according to the disposition of the Civil Law it excludes not Tutors Testamentar during such persons Pupilarity nor Tutors Dative if the nearest Agnat serve not but ordinarily the Tutors of Idiots are the Tutors of Law This Act by Custome is extended to Deaf and Dumb Persons though they be not expressed who have Tutors in the same manner albeit they have sufficient Judgement since they cannot act by it 26. When Tutory is ended whatsoever the Tutor Acted in name of the Pupil the Pupil hath thereupon Action as if it had been done by himself l. 2. ff quando ex facto tutaris so whatever was decerned against the Tutor hoc nomine ceaseth when the Tutory is ended l. fin C. de per. tut and the Action is competent against the Pupil as likewise if the Pupil be advantaged by the Fraud of the Tutor he may be therefore conveened l. 3. ff quando ex facto tutoris 27. Lastly Tutory ceaseth by the Action of removing suspect Tutors which is a popular Action competent to any l. 1. § 6. ff 3. Inst. de susp tut but ordinarily it is done by the Overseers Mothers or Friends of the Pupil or by the other Tutors the grounds thereof are not only his Malversation and it was found a Malversation that the Tutor had not made Inventar conform to the late Act of Parliament July 7. 1680. Mr. Alexander Gibson contra Lord Dunkel and Sir James Thomson but any thing incident or appearing to weaken his trust as if he become insolvent or his Cautioner become such After Tutory is ended the Tutor hath no Action against his Pupil ante redditas rationes till he make his Accompts July 24. 1662. Mr. James Cranstoun contra Earl of Wintoun Neither hath the Tutors Assignay Action against the Pupil before the Tutor Compts be made albeit Assigned to a Liquid Sum unless the Assignay had found Caution for the Tutor January 24. 1662. Mr. James Ramsay contra Earl of Wintoun Neither for the same reason had the Tutors Assignay Action against the Pupil as Heir to his Father though it was ten years since the Pupilarity past July 7. 1676. Spence contra Scot. But a Tutor was not found lyable for the Services he got of the Pupils Tennants in kind January 11. 1668. Grant contra Grant Yea a Tutor having counted and given Bond for the Ballance being charged with other Articles though these were not instantly Liquidat yet the Extract of a Decreet upon the Bond was stopped for a time till the additional Articles should be closed but the Bond was not reduced as being in confinio minoris aetatis anteredditas rationes December 5. 1671. Mr. George Scot contra Mr. John Elleis In the Tutors
Tools but Corns and the like have no profits The violent profits of a Horse Spuilzied in Labouring time was modified to five Shilling Scots per diem February 28. 1668. Lord Justice Clerk contra Home of Lenthil but the modification depends much upon the violence and attrocity of the Spuilzie 17. In Spuilzies the Pursuer needs no other Title but Possession from whence in Moveables a Right is presumed and therefore Spuilzie of Goods in Coffers was sustained upon the Pursuers having the Keys and the Defenders breaking up the Coffers not being done by Parents or Masters July 25. 1676. Rachel Maxwel contra Mr. Hugh Maxwel and Marion Maxwel A Relict in Possession was admitted to pursue a Spuilzie of Corns Sowen and Reaped by her Husband though not Comfirmed by her July 26. 1626. Janet Russel contra Spuilzies must be by unlawful medling or accession thereto and therefore it was found relevantly Lybelled that the Goods Spuilzied were immediatly received into the Defenders House January 26. 1628. Earl of Roxburgh contra Laird of Lugtoun The like was found that it was Spuilzie in the case of accession because the Defender received the Spuilzied Goods that night in his Byres December 2. 1609. contra Dennistoun Yet a Spuilzie was not sustained against a Person as accessory who being charged by the Messenger did Appryze the Goods upon the Ground though in other Solemnities the Poynding was illegal for which he was not answerable Hope Spuilzie Patrick Butter contra Alexander Gordoun But where the Pursuer transacted with one of the Parties guilty for good deed all the rest were freed though he may freely pass or forbear the Pursuit of any of them June 20. 1611. Dowglas contra Leich and Jamison Yea Sums were proven payed by Witnesses which was found sufficient The like found by a Discharge to one of the Parties though it bore not Satisfaction Hope Spuilzie Mr. John Dowglas contra Young though the Discharge did bear but prejudice of the Spuilzie against the rest 18. In Spuilzie the Fact being proven or acknowledged as to some particulars libelled the Pursuers Oath will be admitted to prove the rest of the Libel though consisting of divers Kinds of things March 8. 1628. Brown contra Murray 19. Spuilzie is elided if the Deed was warrantably done at least bona fide by a collourable Title as by Custome and so the Spuilzie of a Horse was elided because he was medled with as being carrying Corn out of the Thirle to another Miln according to the Custome of the Countrey whereby the Horse is forefaulted to the Master of the Miln and the Corn to the Miller January 22. 1635. Menzies contra but not eleided by a Disposition of the Goods Libelled for relief being medled with brevi manu seing Distress was not instructed July 19. 1633. Kirkwood contra Ferguson so where there was a Disposition and Instrument of Possession albeit the Disposition was omnium bonorum and Possession retained for two year yet it was found sufficient contra spolium especially seing there was no violence used in attaining real Possession of the Goods January 29. 1662. Halbert Irving contra Mccairtnay And the Spuilzie of a Horse was eleided because the Pursuer having committed Hamsucken and Slaughter was taken by the Defender with a Horse as being Bailzie of the Barrony where he did it January 8. 1611. John Bailie contra Lord Torphichen And a Spuilzie of Corns was eleided by the Defenders entring in Possession of the Corns upon the Ground whereupon the Corns were growing Hope Spuilzie Elliot contra Lord Bucleuch It was also eleided as to a Messenger because he Poynded the Goods Libelled by vertue of Letters of Poynding directed against the Pursuer unwarrantably raised because there was no conclusion in the Decreet against him March 4. 1628. Scot contra Catharin Banks The like if the Defender meddle with Goods by a Title or Warrand from any other Party to whom they belonged And though this be contrary the Libel it will be sufficient And if either Party alledge Right the most pregnant will be preferred And it was found sufficient to evite Spuilzie because the Defender bought the Horse in question from the Pursuers Son who had ridden upon him to several Mercats as his own Horse by the space of nineteen days Nic. hic Ross contra Stuart 20. The second exception in Spuilzies is voluntar delivery which was sustained though it seemed contrair the Libel Spotswood Spuilzie Margaret Cunninghame contra Peter Mcculloch Nic. de vi bon rapt Russel contra Lord Ross. 21. The third exception against Spuilzie is that the Goods Libelled were lawfully Poynded for though the Decreet whereupon the Poynding was should be reduced for want of formality Yet it will not be a Spuilzie unless it proceeded mala fide or spreta authoritate judicis as when a Decreet proceeded and was used after Advocation intimated to the Party though the Inferiour Judge refused to receive or record it Judicially or when the Debt contained in the Decreet was throughly satisfied before the Poynding Spots Spuilzie contra Brown But the exception of Poynding will be elided by this reply that the Pursuer offered the sum Poynded for the time of the Poynding when the Poynded Goods were offered 22. The most ordinar Reply against Poynding is that the Goods were not Poyndable as being Pleugh Goods which are not Poyndable the time of Pleughing the Ground if there be any other Goods upon the Ground sufficient for paying the Debt according to the Act of Parliament 1503. cap. 98. Nic. de vi bon rapt Hepburn contra Binning And Morison contra Fordice And it was found sufficient that there were other Goods upon the Ground without necessity to alledge that they were the Debitors proper Goods or that the Goods Poynded were then in Labour being two or three days before in the Pleugh December 10. 1631. Gibson contra Corsbie Yea Poynding of Plough-goods was found a Spuilzie being done in the ordinary time of Plowing though the Goods were not yoked that year because of Frost June 7. 1678. Wood contra Stuart There is an other Reply against Poynding that the Goods Poynded were not the Debitors but an other offered to depone they were his or that this offer was made by his Warrand or by his Servant but it is not enough that this offer was made by these who had no direct or presumed Commission July 6. 1666. Corbet contra Stirling This offer must be made before the solemnity of Poynding be ended but was not sustained being offered about an hour after to give summar Restitution July 9. 1675. Cots contra Harper But this Oath will not exclude Probation that the Goods were the Debitors or anothers by way of declarator that thereafter they might be affected by Poynding but is only like an Oath of Calumny that in possessorio hinders Poyncing 23. The last exception against Spuilzie is Restitution of the Goods Spuilzied within twenty four hours re integra it was also
been made thereon the time of the poinding neither when keeped on the Ground for the Masters Rent by his Servants seing they exprest not that cause nor craved not security therefore from the Poynder February 1. 1628. Laird of Halkertoun contra Kadie and Grieves But if it had been expresly for the Rents resting it would not infer Deforcement if such were truely resting Neither did resistance of poynding of Plough-Goods in Labouring time where there were other Goods sufficient infer Deforcement February last 1561. Abbot of Kilwinning contra Tennants stopping of poynding by the Master of the Groundor Landlord of an House for that years Rent infered not Deforcement December 7. 1630. Dick contra Lands or that he hindred entry unless there were special Warrant in the Letters to make open Doors 30. Contravention as it signifies any Act done against Lawborrows so it implys the Obligation of the Contraveener and the personal Right which the user of the Lawborrows hath thereby and likewise the Action by which it is pursued For the uptaking of all it must be considered what Lawborrows are which the word it self insinuats to be Caution found to do nothing but by order of Law for a Burrow or Burgh in our ancient Language is a Cautioner and Lawborrows is Caution to keep the Law the reason hereof is the safety and security of the people who in equity have no more then the Reparation of the Damnage they sustain through Delinquences or illegal Acts But to prevent such and terrifie evil doers a greater penalty then Reparation is appointed according to the Quality and Estate of the Injurer Par. 1593. cap. 166. The half of the Penalty is applyed to the Injured and the other half is Publick Par. 1581. cap. 117. By the Narrative of which Statute it is clear that before Lawborrows were granted only for safety against bodily harm in the persons of the Complainers yet for the reason therein expressed the same was extended that the Complainers their Wives Bairns 〈◊〉 and Servants shall be harmless and skaithless in their Bodies Lands Tacks Possessions Goods and Gear and no ways molested or troubled therein by the persons complained on nor no others of their causing sending hounding out ressetting command assistance and ratihabition whom they may stop or let directly or indirectly otherways then by order of Law or Justice By the same Statute it is also evident that Lawborrows are granted upon the supplication of parties fearing harm who without citing the other party but making Faith upon their Complaint have Letters of Horning summarly to Charge the party complained on to find Caution ut supra and if Caution be found the Action of Contravention doth proceed upon and conform to the Act of Caution but if obedience be not given the Complainer may proceed to Denunciation or Caption but the Contravention will proceed though there be no Caution found but only a Charge upon the Letters without Denunciation unless the Charge be suspended as uses to be done when the penalty charged for is exorbitant and not conform to the act of Parliament January 8. 1628. John Semple contra Cunninghame Contravention may proceed upon any Delinquence according to the Tenor of the Act of Caution or Letters of Lawborrows which though very comprehensive yet is not extended to Acts done without Order of Law being matters of inconsiderable moment as the Tilling up of some Furrows in a March the same being offered to be laid down and the Damnage to be repaired Nic. hic Nicolson contra Hay Neither is it sustained upon any illegal deed when the matter of Right was dubious as in matters of Molestation before the Cognition or before that the Marches be clear Spots contravention Laird of Balcaskie contra Florence Strang. Neither upon a deed done by a colourable Title though afterward reduced as entering in Possession by a null Decreet Hope hic George Moorhead contra Laird of Barskub Neither upon Pasturing upon Bounds contraverted or where there was no violence nor unlawfulness in Pasturage upon clear Marches July 14. 1626. Laird of Grange contra Lesly Neither upon a deed of Spuilzie against the pursuers Tennant not complaining though the Lawborrows bears Men-tennants and Servants to be harmless which was esteemed stilus curiae January 28. 1632. Grant contra Grant and February 9. 1633. Lindsay contra Dennistoun Neither was it sustained upon Deeds done by the Defenders Tennants without alledging Command or Ratihabition unless the Deeds be manifest or known to their Masters as in conveening dayly and cutting anothers Woods July 9. 1611. Vauns contra Laird of Balnagown Neither upon Deeds done by Servants without Warrand unless they be menial Servants Hope bic John Galbraith contra William Anderson Yet Contravention was sustained upon hurt done to the Pursuers servant though he was then Rebel being afterwards relaxed Hope Horning Bruce of Clackmannan contra Bruce It was also sustained upon attempts of injury though there was no hurt as a stroke on the Cloathes and one offer to strike with a Whinger December 21. 1609. Greenyards contra Clackmannan And also upon a violent troubling the Pursuer without Order of Law though without Damnage Spots hic Laird of Balcaskie contra Florence Strang. It is also sustained upon a Delinquence though there be another Action competent therefore as for Molestation November 29. 1609. Dundass contra Cuming of Ironside Or for violent Possession after Warning Hope de actionibus Cuthbert Cunninghame contra But if the other ordinar Action was insisted in and Decreet obtained Contravention also cannot be pursued though the other were offered to be renounced Hope contro Johnstoun contra Sir John Charters Contravention was elided by granting a Factory after the Deeds Lybelled to do the like reserving only Damnage and Interest February 19. 1633. Dennistoun contra Lindsay Contravention on several Deeds sustained separatim toties quoties And against many Contraveeners Contraveening in one Act but in such cases the Lords will modifie and lesten the Penalty within the Rate of the Act of Parliament Novemb. 29. 〈◊〉 Dundass contra Cuming of Ironside Nic. contro Sir John Scot contra Barns Contravention is not found pursuable before any inferiour Judge otherways the Decreet thereof will be null by exception July 6. 1611. Kennedy Taylzeor contra Kennedy of Garriehorn Yet it was sustained where the matter was small and the parties poor March 12. 1622. Blair contra Marshel In Contraventions the Kings Advocat must concur for the Kings Interest but he cannot insist alone as when the private party hath discharged the Deeds even after the intenting of the cause Hope entro Forrest contra Malcolme Turnbul TITLE X. Obligations Conventional by Promise Paction and Contract 1. The Original of Conventional Obligations 2. The Acts of the Will Desire Resolution and Ingagement and their Effects 3. Pollicitation or Offer and its Effects 4. Promise 5. Contracts in favours of third parties valid 6. Pactions and how Words are Obligatory 7. Naked Pactions 8.
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
direct infer Confiscation in this case there was no Counterband Goods Aboard so that though the true Port had been the Enemies Port it would not have inferred Confiscation January 21. 1673. Hendrick Anderson Master of the Sun of Dantzick contra Captain Dowglas The like was found the 19. of February 1673. the Owners of the Palm-tree and Patience contra Captain Atchison and upon the 27. of February 1673. The owners of the King David contra Captain Donaldson where a Swedish Ship wanting a Pass conform to the Swedish formula and not being upon Oath though these were found presumptive Probations of the Interest of Enemies yet not so pregnant as to exclude a contrary positive Probation that the property of the Ship and Goods belonged to Free-men and the not expressing the Port in the Pass of a Swedish Ship was not found so to infer the Goods to belong to Enemies but that it admitted a contrary Probation that the Ship and Loading belonged to Free men and because the Loading was Pitch and Tarr which is Counterband the not expressing the Port being essential as to Counterband would have Confiscate the Ship and Loading unless it had been secured by the Swedish Treaty declaring Pitch and Tar and others being the Growth of Sweden not to be Counterband February 28. 1673. The Master of the St. Peter of Stoad contra Captain Stewart Passes for Ships in time of War must be renewed for every Voyage and cannot otherwayes express the kinds and quantities of the Cargo which was sustained as one of the reasons of the Adjudication of the Ship called the Elsinburgle at the instance of Captain Dowglas decided July 18. 1673. yet a Ship was not found Prize as wanting a Pass for the present Voyage in respect She having loused at Nantz and having there a particular Pass she was forced in to England by stress of Weather and there sold her Loading and went back to Nantz and took in the like Loading for the same Owners and Port and therefore altered not the first Pass June 17. 1673. Captain Donaldson contra Master of the Debora It is Likwise most necessar that Passes be truly granted upon Oath made which is the greatest security against colourable Documents and therefore was sustained as one of the Grounds of Adjudication of the Ship calledth 〈◊〉 St. Mary that the Master by his Oath acknowledged that he had not made Faith as the Pass bears as was found June 25. 1673. and upon that reason a Ship was found Prize in which case also one Witness Deponed that papers were thrown over-board July 9. 1673. Captain Gilles contra the Owners of the Bounder Double Documents infer Confiscation but that is Chiefly understood when the Documents are contrary in material points but where there was one pass from the Colledge of Commerce and another from the King of Sweden having some contrariety but not in material points the same was not found to make the Ship prize June 13. 1673. Captain Winchester contra the Owners of the St. Andrew The throwing of papers over-board or destroying the same at the time of the captur is a most pregnant ground of Confiscation for thence it is presumed that these papers would have instructed the property to belong to Enemies and therefore being proven but by one Witness it put the burthen of probation upon the strangers that the Ship and Loading belonged to free men February 28. 1673. The Master of the White Dove contra Captain Alexander regard was also had to the same though but proven by one Witness in the Confiscation of the Bounder July 9. 1673. and if there were concurring Witnesses in this point it would infer praesumptionem juris de jure not admitting contrair probation Ships have oftimes been found prize by the concurse of several evidences of a contrivance under colourable Documents and therefore a Ship was found prize because the pass did not mention the Port which a Toll-breif bore to be Breme and the Master by his Oath acknowledged the Port to be Amsterdam and that the Owners were other persons then were exprest in the pass and that the Master resided in Holland though the pass bore him to to be a Burgess in Dantzick against which a contrary probation was not admitted January 23. 1673. the Owners of the Crown of Dantzick contra Captain Lyon a Ship was also Confiscat because the Master and Steersman deponed that they knew not to whom the Goods belonged but that they had order from a Merchant in Amsterdam to consign them in the Pack-house of Stockholme to be delivered to such persons as should show such marks July 10. 1673. Captain Frazer contra Master of the Flying Heart and in like manner the Fortune of Trailsoundt was found prize July 22. 1673. because it was acknowledged upon Oath that if the Ship were taken by Hollanders the Company should depone the Goods belonged to the Tarr Company in Stockholme as the pass bears and if it came safe to Scotland or England they should declare the same belonged to Samuel Souton an English man residing in Sweden Albeit a part of Ship or Loading be found to belong to Enemies and that thereby the whole becomes prize as being partners with the Enemy in carrying on their Trade yet these who can show that they were in an invincible ignorance of the interest of an Enemy and did all that they could do to secure against the same by taking the Oaths of the Owners of the whole Ship and Loading that the property belonged to themselves and no part thereof to an Enemy it would take off the Delinquence of that party and preserve their interest which was never pleaded during these Wars but by some of the Kings Subjects as in the first War the King having by His Proclamation warranted all Ships even from Enemies to be employed for bringing Timber for the rebuilding of London a great part whereof was then lately burnt Certificats and passes being alwayes had from the Duke of York Lord High Admiral of England whereupon Iohn Dyssone Merchant at London Fraught a Ship of Norway whereof Booz Neilson was Master called the Raphel to Import to London six thousand Dail boards the Ship in her Voyage to London was taken by Captain Wood and the whole Ship and Loading adjudged as prize which being brought before the Lords by Reduction they found that the Ship and Loading became prize because there were found Aboard fifteen hundred Dails belonging to the Owners or Company who then were in enmity in the Danish War and yet the six thousand Dails belonging to the London Merchant who had contracted bona fide by the Kings Proclamation did not become prize with the Ship as was decided July 13. 1669. for the London Merchant not being the place of Embarquing could not know whether there was more entered then the Dails he Fraughted or whether the Owners gave truly an Oath upon the property and quantity of the Loading And in like manner Sir Francis
are the real Charter yea it is not like they would reject a Bond obliedging to grant such Infeftment albeit it do not de presenti dispone as a sufficient adminicle to sustain a seasine where they had been 40 years possession although prescription was not compleated by immediat subsequent Seasines or uninterrupted possession the Party making faith that he did not keep up or conceal any other part of the Investiture which would sufficiently take off the presumption of Fraudful concealing or away-putting the immediat warrant of the Seasine which might afford defences to the other Party For even in a recent Case of the Infeftment of a Wife in Life-rent her Seasine was sustained upon Production of her Contract of Marriage albeit the Seasine proceeded upon a Bond granted for the same cause January 29. 1665. Mr. George Norvil Advocat contra Margaret Sunter where nothing was alledged of long possession See what was found November 22. 1628. Clappertoun contra Hoome Hope Seasine Murray of Philliphaugh contra Schaw Gray contra Finlayson there could be less question if the Seasine related to a precept apart and did not bear whether the precept proceeded upon a Charter Disposition Alienation or Bond for then the production of any of these would adminiculat the Seazine Seasines within Burgh for serving of Heirs by Hesp and Staple by the immemorial Custom and Priviledge of Burgh being given by the Town-Clerk do prove sufficiently both the propinquity of Blood that the same was Cognosced and Seasine given accordingly without necessity of any warrand or adminicle but in Seasines of Original Rights of conveyances to singular Successors will not be sustained by Seasines by the Town Clerk without Adminicles as to Tenements within Burghs as was found in an Infeftment from a Father to his son bearing to be upon the Fathers Resignation February 11. 1681. Francis Irwing contra Corsan June 21. 1672. William Mitchel contra Thomas Cowie Seasines propriis manibus when either the Superior himself doth give Seasine to his Vassals Acturney or when the Superiors Baily by his Precept gives Seasine to the Vassal himself being present and accepting or when the Superior immediatly gives Seasine to the Vassal in these Cases the Nottars warrant is sufficiently instructed by the Seasine and by the Disposition Contract of Alienation or Bond Or when the Seasine is propriis manibus secundum Cartam Conficiendam if a Charter thereafter made beshown as a Seasine propriis manibus by a Father to his son reserving the Fathers Liferent was found valid against a second Wises Infeftment granted for a competent Tocher being adminiculat by a Bond granted by the Father of the same date with the Seasine obliedging him to warrant the same February 11. 1669. Buchan contra Tait yea a Seasine propriis manibus by a Superior containing Resignation accepted by the Superior and immediatly Seasine given propriis manibus was sustained without any warrant subscribed by the Superior but by the Vassals Disposition containing Procuratorie of Resignation there being no more solemn Infeftment in competition Januarie 17. 1672. John Young contra Thomson But as to Seasines propriis manibus by Husbands to their Wives in Contemplation of Marriage either before Marriage where Marriage followed or after Marriage having no adminicle but the Marriage The Lords according to the different Cases have sometimes sustained them when they were suitable to the parties and not exorbitant and where the question was only with the Husbands Heir Nov. 22. 1628. Clappertown contra Hoom. June 19. 1668. Relict of Wallace of Galrigs Contra his Heir in which case it was instructed that about that time the Wife had disponed to her Husband her Joynture by a former Marriage But such Seasines are easily improven if they be not asserted by the Witnesses insert As in the last case the Heir insisting in improbation there being four witnesses in the Seasine two of them deponed they were not witnesses thereto the third remembred not the fourth was positive for it and the Nottar offered to depone that it was true yet having no adminicle his oath was not taken and the Seasine was improven but if there had been an adminicle the Nottar and one of the Witnesses being positive the Seasine would not have been improven for where there is a warrant mediat or immediat providing a Seasine to be given Quid fieri debet facile 〈◊〉 And therefore the witnesses not remembring would hardly improve such Seasines unless their Testimony were positive giving special circumstances of their remembrance as being in such another Country or far distant place at that time if the truth of that were otherwayes astructed But the general denial to be witnesses could import no more but non memini and therefore an adminicle in write with the protocol or oath of the Nottar if he were alive and especially if possession followed for some time these would stronglier approve then the not remembrance or general denyal of the witnesses insert would improve But this dipping upon a general Question de side instrumentorum we shall say no more of it in this place nor of the Admission and Qualification of Nottars as to which Craig relates the customs of France which were not then nor have not yet been here allowed but certainly more exactness ought to be in the admission of Nottars not only as to their skill but as to their reputation of Honesty and Fidelity and the least want or weakning of these should turn them out For the Introduction of the Solemnity of the Instruments of Nottars was not only because of old few could write and the impression of Seals were easily imitat yea even such rude Subscriptions there being some in Justinian's time who could so artificially imitat anothers hand write that himself could not know it or durst swear it was not his write And therefore he introduced two remeeds that private writes should not prove by the Subscription of the party unless that there were three subscribing Witnesses knowing he Parties Contracters or that there were three Witnesses who depone anent the truth of the Deed or otherwayes that writes were made in publick by a publick person which at first was only done Judicially but thereafter Extrajudicially by a Nottar-publick but our Custom hath returned to private write and 〈◊〉 not the Instruments of Nottars but where they are adminiculat by 〈◊〉 〈◊〉 in the case where parties cannot write and then in matters of Importance two Nottars and four Witnesses are necessary by special Statute But this is not extended to seasines but only to the subscriptions of Nottars for parties February 11. 1669. Buchan contra Tait Julie 5. 〈◊〉 Bishop of Aberdeen contra Viscount of Kenmuir Yet in some cases of small importance Instruments of Nottars are probative and in all cases where witnesses would prove it doth much fortifie the same that they were Witnesses required and Instrument of a Nottar taken thereupon For then the Instrument of the Nottar astructed by
though not found in the Register were found sufficient against singular Successors purchasing thereafter the designe and tenor of this Statute would be eluded for the Statute bears if they be not Registrat which must import there being insert in the Register they are null and therefore though the Keeper of the Register hath attested such Seasines to be Registrate yet truly they are not Registrat And no purchaser could be secure by inspection of Registers if a false attest of a Clerk could exclude him who oftimes is insolvent But the not inserting of Seasines within Burgh in the Towns Books doth not annual them Seasins within Burgh being a total exception from the whole Act for Registration and the Statute being defective in that point the Lords did very fitly supply it by these two remeids that the Seasins within Burgh not being in the Towns Books should not be found null yet they might be reduced as latent and fraudulent And if the Town Clerks were put to find Caution for the damage real Rights within Burgh would be fully as secure as these without Burgh 23. Seasines as all other Instruments must have the attest and subscription of the Nottar giver thereof bearing the names and designations of the Witnesses insert whereof two will be sufficient because the Seasine must have a warrand by a subscribed Write by the author of the Infeftment and so needs not two Nottars and consequently requires not four Witnesses as other principal Writes of importance subscribed by Nottars July 5. 1680. Bishop of Aberdene contra Viscount of Kenmure Neither was a Seasine found void because taken in the night nothing of latency or fraud being qualified but Possession conform Margaret Arnot and Patton her Spouse contra Mr. Archibald Turner 24. If a Seasine be only extracted out of the Register of Seasines it will not be sufficient because that Register is only for publication As also the Register of Hornings and Inhibitions and not for conservation for the keeper of the Register doth not keep the principal Seasines but gives them back marked But if the principal Seasine marked as Registrat be wanting if the Nottar who gave it be alive he may renew it out of his Protocol and the keeper of the Register of seasines may attest it Registrat upon the day mentioned in the Register and therefore the Lords upon supplication ordains the keeper of a Register so to mark a seasine January 2. 1678. Sir Andrew Ramsay Supplicant 25. But if the Nottar who gave the seasine be dead there remains yet this remeid that a transumpt may be made upon production of the Protocol and Citation of the Author or his Heirs or any other party having interest which Transumpt is sufficient in place of the principal seasing and may bear both the Transumpt of the Protocol and of that part of the Register where the seasine was Registrate But the Instrument of a Clerk containing the Tenor of a seasine will not be sufficient without Citation of the parties If both the principal seasine and the protocol be wanting the Tenor of the seasine may be proven upon Citation of the same parties as in a Transumpt if there be sufficient adminicles in Write and Witnesses who saw the seasine wherein the Extract of the seasine out of the Register is a good Adminicle Seasines taken out of the Towns Books not by the Town Clerk who gave the seasine but by his successor will not serve for a principal seasine the Towns Book being but the Protocal of the Town Clerk and therefore either must the Towns Book be produced that the Seasine may be transumed or Commission granted for inspection or collation which being returned was found to suffice as a Transumpt February 11. 1681. Francis Irving contra Corsan 26. Infeftments do sometimes expresse the meithes or marches of the Lands and Tenements which thence is called a bounding Infeftment giving right to all within the bounds if the giver of the Charter had right or if the Vassal have by that Infeftment had peaceable Possession till prescription otherways bounding Charters prejudge not Par. 1592. cap. 136. Yet prescription will adject that which is within the bounding to another Tenement which will not be elided by possessing the major part of that Tenement But no prescription can give right to what is without the bounding as part and pertinent Novemb. 14. 1671. Walter Young contra Bailzie Carmichael But where there is no bounding possession clears the parts and pertinents of every Tenement and in competition where any ground is claimed as part and pertinent of several Tenements witnesses are allowed to either party for proving the Possession and interruptions unless it be alledged that that ground is separ 〈◊〉 tenementum having a distinct Infeftment of it self which will exclude the alledgeance of part and pertinent if the several Infeftments be not excluded by prescription as was found in the said case Young contra Carmichael But though the one Infeftment contain the ground in question per expressum in the enumeration of the parts of a Barronry or Tenement And though the other Infeftment contain no enumeration or in the enumeration mention not the ground in question but the same is alledged to be part and pertinent comprehended under the common Designation or under some of the parts enumerat if both flow from one common author as original Rights the first is preferable otherways both will be allowed Witnesses for proving Possession and interruption in paricasu aut dubio the express Infeftment will be preferable 27. But the main question is here concerning Infeftments holden of Subjects not being past upon the granters resignation by the Superior or the Superiors Confirmation or by his obedience upon Decreets of Appryzing or Adjudications which therefore are called base Infeftments and private Infeftments because they proceed in a more private and ignoble way being done by the granter and receiver thereof without the interposition of the Superiour The doubt is whether such be compleat real rights carrying the property of the ground by the Charter and Seasine only or not until possession of the Hereditament be obtained The ground of this distinction betwixt Infeftments and of the doubt as to base Infeftments is from the Act of Parliament 1540. cap. 105. Whereby it is clear First Before that Act Infeftments holden of the Disponer without Resignation or Confirmation were valid without possession and preferable to all posterior Infeftments though proceeding upon Resignation or by Confirmation for it is for remeid of this that this Statute is enacted Secondly By the Letter of this Statute posterior Infeftments upon Resignation or by Confirmation are only preferred to prior private Infeftments when the obtainer of the posterior Infeftment brooks the Lands peaceably by Labouring Manuring and uptaking of the Mails Profits and Duties and so are known Heretable Possessors thereof year and day And when such Infeftments are for Causes onerous or do contain or import warrandice neither is there
Superiours must be called 73. All other interest of Fees are carried as part and pertinent though they be not exprest and albeit Woods and Lochs use oft to be exprest yet they are comprehended under parts and pertinents and therefore the Master of the Ground hath not only right to the Water in Lochs but to the Ground thereof and may Drain the same unless servitudes be fixed to Water-gangs of Milns or other Works and the Ground of the Loch and all that is upon it or under it is a part of the Fee But if the Loch be not wholly within the Fee but partly within or adjacent to the Fee of another then unless the Loch be exprest it will be divided amongst the Fiars whose Lands front therupon The parts of Fees are only exprest in bounding Charters but in all others the parts are only known by the common reputation of the Neighbour-hood what they comprehend under the Designations exprest in the Infeftments and by Possession as part and pertinent of the Lands Designed in the Infeftment whether they have but one common Designation as such a Barrony or Tenement or if there be an enumeration of their parts by distinct Names which doth not exclude other parts though belonging to none of the parts enumerat there is only this difference that expresse Infeftments are preferable to these which alledge but part and pertinent much more if it be alledged to be separatum tenementum requiring a distinct Infeftment and yet prescription as part and pertinent will exclude an Infeftment as a separat Tenement But where there are March-stones set it is a great convenience to preserve peaceable Possession and though it cannot be proven when these Marchs were set yet their being repute as March-stones will be sufficient to defend at any time within prescription But Lands are oftimes so large comprehending Mures and Mountains that March-stones cannot be set for remeid whereof the Lords of Session by an Act of Sederunt 1580. Ratified in Par. 1587. cap. 42. Ordained all Molestations in Property or Commonty in possessorso to be before Sheriffs Bailies of Regalitie and other inferior ordinar Judges where the Lands ly and for that effect the Lords will direct Letters of Cognition to proceed upon fifteen days warning by an Inquest of persons who best know the Matter the most part thereof being Landed-men having at least four Ploughs of Land or three hundred merks of irredeemable Rent and the rest substantious famous Zeamans of the same Paroch and failing thereof of the Paroch nearest adjacent and if both parties have Cognitions raised before Litiscontestation on either the half of the Assyzers shall be taken of these summoned for either party or in case there be not a sufficient number of them habile the Judge shall supplie the same and the odd man to be chosen by lot which Inquest shall visit the ground and shall return their verdict upon oath both upon the Clames and exceptions of the parties and in case the Judge ordinar be suspect or that the Lands ly in divers Jurisdictions the Lords are to appoint unsuspect Judges to be past under the quarter Seal There are only excepted the actions belonging to the members of the Colledge of Justice which are to be before the Lords yet the Lords are accustomed to grant Commissions to some of their own number where questions arise concerning the parts or Marches of Tenements to visit the Ground and there to receive witnesses hinc inde both as to Possession and Interruption which the Lords do advise and determine without an Inquest Parts of Tenements in possessorio are sustained by the present peaceable Possession for some time for seven years peaceable Possession will sustain the Right of the whole till Reduction And fourty years Possession as part and pertinent is sufficient in petitorio for the point of Right and will exclude an Infeftment express yea though it be an Infeftment as distinctum tenementum November 14. 1671. Walter Young contra William Carmichael But if there be interruptions and that either party hath had some Possession the express Infeftment will be preferable and any lawful Interruption will preserve an Infeftment of a separate Tenement but if neither party be expresly Infeft in the Lands in question interruption by either party will not exclude prescription because there is not a prior special Right valid of it self without Possession and therefore if both parties have had mutual or promiscuous Possession each Possessing when they could and turning off the other that part of the Land so possest will continue as a promiscuous Commonty which frequently falls out about the Marches of large Tenements and was so determined betwixt the Lord Strathoord and Sir Thomas Stuart of Gairntully if neither party have an express or several Infeftment Discontiguity will not exclude part and pertinent though if the question be with him to whom the Land is Contiguous less Probation will prefer him Craig l. 2. Dieges 3. relates a case in his time betwixt the Earl of Angus and Hoom of Polwart where Discontiguity did not exclude part and pertinent not being known as a distinct Tenement Pertinents comprehends all the Natural Fruits for Corns are accounted as Moveable and as no part of the Ground as hath been shown in the former Title Section second And also all servitudes so a servitude of a Pasturage in another Heretors Wood was sustained as a Pertinent by long Possession Spots Servitude Laird of Knockdolian contra Tennents of Partick And Part and Pertinent being exprest in a minute of Sale it was found to carry common Pasturage in a Mure which was a Commonty to a Barrony whereof the Lands sold was a part February 14. 1668. William Borthwick contra Lord Borthwick And in the case betwixt the Laird of Haining and Town of Selkirk decided February 15. 1668. A Barrony of the Kings cum pertinentibus cum pascuis pasturis was found to carry common Pasturage in the Mure of the Barrony and that the last fourty years Possession did presume the like Possession in the Feuars from the obtaining their Feues and that interruptions by the Town whose Infeftment was but general cum communiis did not exclude the Pasturage of the Feuers who had also made interruptions against the Town 74. Craig l. 2. Dieges 8. Debates this question whether Wood and Coal be parts of the Ground or only Pertinent as Fruit thereof for if these be parts of the Ground Conjunct-feers or Liferenters will have no share thereof nor Donatars of Ward Non-entry or Liferent-escheat so that the question is very important wherein he relates two Decisions one betwixt the Lord Seatoun and his Mother who being served to a Terce was found to have right to the third of a Coal-work constantly going for sale in the Defuncts time and another betwixt Ramsay of Dalhousie and Mary Ballantine his Predecessors Relict in relation to a Wood which the Fiar was found to have the only Right to Sell and
seemeth to make a herzeld due by Tennents possessing four Oxen-gang of Land to their Masters going to the War by poor Tennents possessing only four ongat of Land or less such not being able by reason of poverty to go in person with him yet the constant Custom layeth Herezelds most upon Tennents possessing more Lands and generally upon all who are not Cottars not paying immediately to the Master but to his Tennent dwelling upon the Ground and there is no difference whether he be Mailer or Fermer only due at the Tennents death The Herezeld was found due to the Lady Liferenter though the Defunct had the Room in Steelbow Hope Herezeld Lady Tockrig contra Oliver Baird But not where the Defunct Tennent was warned and decerned to remove Hope Ibid. Walter Callender contra his Tennents And Craig observeth lib. 2. Dieges 8. That a Herezeld being taken the Tennents Successor is not to be removed for a year so it was found March 20. 1629. Auchnacloich contra Mathie 81. Steelbow Goods set with Lands upon these terms that the like number of Goods shall be restored at the issue of the Tack do not pass by Disposition of Lands as pertinents thereof unless they were exprest but do remain as moveables arrestable December 4. 1638. Lady Westmerland contra Earl of Home January 28. 1642. 〈◊〉 Dunda contra George Brown and so they fall under single Escheat and cannot be taken from the Tennent till his Tack run out Decem. 6. 1628. Lawson contra Lady Boghal Having considered the nature tenor and import of the several kinds of Feess it is now proper to consider the legal effects thereof which are either injudicio possessorio or petitorio 82. In Possessorio all Infeftments cled with lawful Possession during the time prescribed by Law or Custom are valide and effectual either in pursuit or defence ay and while they be reduced and thereby not only is the Fiar or these deriving right from him secure to possess and cannot be impeded or disquicted by any other right though it would be a prior and better Right in petitorio but thereupon all Possessory Actions may effectually proceed for Mails and Duties for removings of Tennents or Possessors for Perambulation or Cognition of Marches much more for Intrusion succeeding in the vice of removed Tennents or Ejection as to which Possession alone is sufficient The motive Introductory of this Priviledge in possessory Judgments is because Infeftments are ordinarly granted subalternly there being many Superiors betwixt and the Supreme and each Superior keepeth his own Infeftments and gives to his Vassal out a Charter and Seasine holding of himself and therefore no perfect right of the Ground can be instructed but by a Deduction from the King the suprem Superior or by Prescription And therefore in Petitorio whereby the full Validity of the Right is declared or decerned before a full Issue all the interveening Superiors must be called to produce their Rights till the common Superior from whom both Parties derive right so that neither Party can quarrel his 〈◊〉 which requires a long course of time And therefore he who by Infeftment is suffered to possess for a considerable course of time unquarrelled the Law presumes his Right is good and he is not only secure not to be comptable for the Rents and profites he has enjoyed which require no course of time but bonae fidei Possessor facit fructus conjumptos suos Of which in the former Title § 28. But he is even secure for all that he shall enjoy until in a petitory Judgement by a Declarator or Reduction he be put in mala fide by the Production of another Right appearing evidently to be better and exclusive of his till which he is not to doubt of his own Right but may safely and quietly enjoy and spend the Fruits The time required by Law or Custom for attaining this Priviledge was undetermined and in arbitrio judicis at first but it was not sustained upon two years possession July 17. 1610. Auchterlony contra Annan It was sustained upon fifeteen years possession ordinarly and then upon fourteen years possession July 16. 1623. Sybald contra Stuart And upon ten years possession November 19. 1623. Hamilton contra Dick. March 29. 1624. Monnypenny contra Tenents It was also sustained upon seven years possession Decemb. 10. 1623. Irving contra Gordon Hope confirm Earl of Arran contra Tenents of Camely and Earl of Seaforth And it was once sustained upon six years possession March 13. 1627. Feurd contra Stivenson Yea once upon three years possession Hope Possession Murray of Lochmaben contra his Tennents But now of a long time it hath been fixed to seven years possession and it was not only sustained as to Lands either as to the Fiars or Liferenters but also to Multures where the Lands and Quantities of Multures were particularly exprest But it was not sustained upon an Apprizing without Infeftment or Charge Feb. 6. 1668. Mr. George Johnstoun contra Charles Erskin Neither was it sustained upon obtaining Decreets or lifting of seven years Rent together but continuing in possession by the space of seven years by labouring or uplifting the Rent January 25. 1672. Harper contra Armour Neither upon possession as part and pertinent the possession being vitious and violent June 25. 1674. Mr. Heugh Maxwel contra Ferguson The like where the possession was interverted June 24. 1679. Menzies of Sckian contra Campbel of Torerick Neither upon Apprizing and Infeftment against an other Apprizer within year and day July 17. 1675. Balie Baird contra Bailie Justice Neither was it sustained against an Apprizing for the avail of a Marriage being debitum sundi December 17. 1673. Patrick Hadden contra John More Neither against the King nor His Donatar seeing the King needs no Reduction and cannot be prejudged by the neglect of His Officers not pursuing in seven years January 28. 1679. Laird of Blair contra Lady Heslehead Neither against a Liferenter unless the Possession had been seven years after her Husband's death Neither against recourse upon Infeftment of Warrandice after Eviction which requires no Reduction January 9. 1666. Elizabeth Broun contra John Scot. The like unless there had been seven years possession after the Eviction February 20. 1668. Mr. John Forbes contra Innes Neither is it ever sustained against Infeftments of Annualrents Feu-duties or other debita fundi June 29. 1662. Adamsons contra Lord Balmirrino Neither have Annualrents the benefite of Possessory Judgements for them more then against them But it was not found relevant to exclude a Possessory Judgement that there was Interruption by Citation not being within the last seven years July 15. 1668. Earl of Wintoun contra Gordon of Letterfary Nor because the matter became litigious by a Denunciation and Apprising June 17. 1678. Sir William Stuart contra Murrays It uses to be contraverted whether seven years possession be relevant against an Infeftment cled with possession immediatly before the seven years As to
which there have been Decisions upon both parts wherein the Reconciliation may be that if the seven years possession entered not by order of Law or by consent of these who were then possessors but entered in the void possession or obtained the Rents from the Tennents of consent such possession was vicious because the former possessor continued to possess animo but if the former possessor had long forborn to possess before the seven years or that the subsequent possessor entered by authority of Law or consent of the former possessor there is no reason to make difference whether his Competitor was in possession before or not 83. Charter and Seasine are sufficient both for pursute and defence where there is not another Infeftment that comes in competition But when two Infeftments of the same subject compete if neither have had seven years lawful and peaceable possession then the point of Right comes to be debated without Reduction and either party must propone their alledgeances upon their Authors Rights in the same way as in Declarators of Right and whatsoever points are found relevant for either party or where the Rights alledged on are ordained to be produced before the relevancy be discust terms will be assigned to either party and they will get incident diligences by Exhibition against their Authors to produce and ordinary diligences for producing their own or their predecessors Rights and whatever the event be either party will be secure as to the by-gone Fruits consumed bona fide The effect of Infeftments in the point of Right is that by the first perfected Infeftment with the several requisites aforesaid granted by him who had power the Property is established and the Proprietar will be preferred at least in petitorio to all posterior Rights but if the granter have no power as not being validly insest himself or being impeded by Inhibition or Interdiction or by anterior diligence making the matter litigious he cannot validly confer a Right Concerning Interdictions we have spoken before Tit. 6. Litigiousness falleth in amongst the effects of legal diligence But it will be proper here to speak of Inhibitions seing the effect thereof reacheth only as to heretable Rights and cometh not so properly elsewhere under consideration 84. Inhibition is by Letters under the Signet prohibiting the party inhibite to dilapidate or dispone any of his Lands Heretages c. Which is understood till the cause for which the Letters were direct mentioned therein be satisfied It proceedeth summarily upon Supplication and production of any ground thereof whether Obligation or Process and though it pass of course yet sometimes is refused as to a Wife upon the Contract against her Husband Jan. 11. 1625. Hamiltoun Supplicant And to an appearand Heir against his Father upon his Fathers Contract of Marriage whereby it was provided that his Father should be interdicted to certain persons then dead January 16. 1622. Silvertoun-hill Supplicant but being past of course against an appearand Heir it was found valid because he was entered before the debate thereupon July 5. 1623. Kirkwood contra Belshes It was refused upon the warrandice of a Discharge from the dischargers fact and deed only unless the Supplicant show a particular hazard February 4. 1623. Patrick Forbes contra William Dick. The effect of Inhibitions reacheth only deeds done by the Persons inhibite after the Inhibition and doth not reach any deeds done thereafter by his Heirs and Successors but these must be of new Inhibite Hope Inhibition John Pirycon Secondly it hath no effect against moveables albeit growing upon the Ground the time of the Execution of the Inhibition though the Style thereof bear not to dilapidat Lunds Heretages Goods or Geir March 22. 1623. Laird of Braico contra Ogilvie Hope Inhibition Aikin contra Anderson yet it will reduce a moveable Bond in so far as it is the ground of an Appryzing but prejudice of personal Execution or against moveables July 2. 1630. Dowglas contra Johnstoun But it may proceed upon a moveable Bond Ibid. July 2. 1625. Porteous contra Elliot where reduction was sustained to the effect Appryzing may proceed upon the moveable Bond though no Appryzing or other real right had then followed upon the said Bond. Inhibition is only effectual against posterior voluntary rights granted by the person Inhibite but not against Appryzings Adjudications and Infeftments thereupon though posterior to the Inhibition if they procced upon a debt prior to the Inhibition yea though the date of a Disposition was prior to the Inhibition yet the same being granted to the Purchaser for himself and to the behove of others That Clause being filled up with another hand was presumed to be filled up after the Inhibition unless the contrary were proven to have been filled up before the Inhibition by Witnesses above exception Jan. 15. 1672. Lady Lucia Hamiltoun contra the Creditors of Monkcastle Neither will it be effectual against an Infeftment after the Inhibition proceeding upon a Disposition prior thereto or upon an obliegement to grant such an Insestment being prior to the Inhibition Hope Inhibition Patrick Stirling contra Tennents of Lethendy Here the posterior Infeftment was of the property and the prior obliegement was to grant an Annualrent which was to exceed the value of the property But where the prior debt bore an obliegement to Infeft in an Annualrent generally out of the debitors Lands the disposition of the property was reduced as posterior though upon a debt prior Jan. 21. 1629. Scot contra Turnbul And an Inhibition was found not effectual against a postenor Infeftment though it proceeded upon a prior Bond meerly personal and bore no obliegement to Infeft Hope Inhibition Laird of Tillibairn contra Laird of Clunic Inhibition was not found effectual against Dispositions posterior proceeding upon Bonds prior bearing obliegements to Infeft generally or particularly July 22. 1675. Sir George Gordoun con Seaton Feb. 6. 1635 Ross con William Dick. But Inhibitions extend not to posterior Renunciations of Wodsets which are deeds necessary upon payment though the Style of the Inhibition bore renunciation July 16. 1667. Mr. John Elleis con Keith whereby Creditors were much prejudged for remeid whereof the Lords by Act of Sederunt of the 19. of Feb. 1680. did declare that Creditors using 〈◊〉 against their Debitors Infeft in Wodset or Annualrent if they shall make intintation by Instrument of a Nottar to the persons who have right to the Reversions of the saids Wodsetts or Annualrents That the Wodsetter or Annualrenter stands Inhibit at their Instance and shall produce in presence of the party and Nottar the Inhibition duly Registrate that they will not sustain Renunciations or grants of Redemption although upon true payment not being made bona fide but after Intimation as aforesaid unless the Redemption proceed by Process whereunto the user of the Inhibition must be called Inhibitions must be execute by Messengers as the Style thereof bears against the person Inhibite personally or at his Dwelling-place and
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
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
when they are allocat all Intrometters with the Teinds of these Lands allocat are lyable for the Stipend not proportionally with other Intrometters but in so far as their whole Intromission can reach even though they made payment before they were charged by the Minister which they alledged was bona fide to the Heretor or Tacksman February 19. 1629. Kirk contra Gilchrist And if there be no Allocation the Stipend is a burden affecting the whole Teind out of which it is modified and the Minister may take himself either to the Heretor or possessor Spots Kirk-men Mr. Andrew Ker contra William Gilchrist December 3. 1664. Mr. J. Hutcheson contra Earl of Cassils In which case it was found that the Minister might take himself to any of the Heretors of the Paroch for the whole Teind inso far as his modified Stipend went seing he had no Locality and that the Heretor distrest behoved to seek his relief proportionally from the rest And a Minister was found to have right to pursue an Heretor for his Stipend payed out of his Lands and that accepting an Assignation to a part of the Tennents duties did not liberat the Heretor further then what the Minister received unless the Assignation bore in full satisfaction November 9. 1677. Mr. John Rutherford contra Murray of Skirling Yea though an Heretor was but an Appryzer of the Stock and Teinds he was found lyable personally though he had not intrometted and though he offered to assign as much of the Rent December 20. 1622. Sir John Prestoun contra Sir John Ker. And though the intrometter was but a Wodsetter both of Stock and Teind having no more but his Annualrent and there being sufficient Teind beside the Wodset March 21. 1633. Mr William Keith contra James Gray and others But where a Liferenter possessed she was only found lyable not the Fiar June 24. 1663. Menzies contra Laird of Glenurchie 31. But Teinds before valuation are only due according to the Cropt and Goods without restraining the Heretor in the free use of his Ground who may leave it all Grass though it had never been so long Corn and may Stock it with yeld Goods which will yield no Viccarage and therefore having inclosed a parcel of Ground and sown it with Kail Carrets and Herbs the same was found Teind free unless these were accustomed to pay Teind in that place June 9. 1676. Alexander Burnet contra William Gibb 32 Even after valuation Teinds are not debita fundi nor do affect singular Successors as to bygones before their Right February 28. 1662. Earl of Callender contra Andrew Monro 33. The legal terms of Benefices and Stipends whereby they are due to the Incumbents are Whitsonday at which the Fruits are held to be fully sown and Michaelmess at which they are presumed to be fully separate and therefore if the Incumbents Entry be before Whitsonday he hath that whole year So if he be Deposed or transported before Whitsonday he hath no part of that year if after Whitsonday and before Michaelmess he hath the half July 24. 1662. Mr. Patrick Weims contra Cunninghame If after Michaelmess he hath the whole But if the Incumbent die he hath further interest in his Benefice even after his death 34. Ministers dying their Wives Bairns or Executors have the Annat of their Beneficeor Stipends which is acknowledged to be their ancient Right Parl. 1571. cap. 41. whereby it is declared that Beneficed persons dying shall have right to the fruits of their Benefice upon the ground and the Annat thereafter to pertain to their Executors But the question is what the Annat importeth there is a Letter concerning it written by the King to the General Assembly and ratified by them All do agree that if the Incumbent die after Michaelmess he hath right to that whole year by his Service and to the half of the next year by the Annat But if he die before Michaelmess he hath right to the half of the Stipend if he survived Whitsonday proprio jure And to the other half as the Ann which his Executors have right to but all the question is when the Incumbent doth not only survive Michaelmess whereby he hath the half of the next year but if he survive the last of Dec. whether he hath right to the whole Stipend of that year as to which that Rule hath been sustained in favorabilibus annus incaptus habetur pro completo therefore the Ann was the whose year which was so decided July 5. 1662. Executors of Mr. James Fairlie contra his Parochioners but the Anns of Bishops and Ministers are now brought to a much more equal way by Act of 〈◊〉 August 23. 1672. whereby it is Statute that the Ann in alltime thereafter shall be half a years Rent of the Benefice or Stipend over and above what is due to the Defunct for his Incumbency viz. if he survive Whitsonday he shall have the half of that year for his incumbency and the other half for his Ann and if he survive Michaelmess he shall have the half of the next year for his Ann whereas before if he survived Michaelmess and lived but till the last of December his Ann was but the half of the next year but if he lived till the first of January his Ann was that whole year whereby the next Incumbent had nothing to expect for a year during which the Kirk was like to ly Vacant The Annat divides betwixt the Relict and nearest of Kin if there be no Bairns and is extended to the profite of the Gleib if there be no new Intrant July 19. 1664. Elizabeth Scrimzour Relict of Mr. John Murray contra his Executors But where there is an Intrant the Gleib belongs to him and is not part of the Ann nor did belong to the former Minister unless it had been sown by him and the Cropt upon it at the Entry of the Intrant July 6. 1665. Mr. John Colvil contra Lord Balnterino Where it was also found that the Defunct had his Ann though he had neither Wife nor Bairns 35. To conclude this Title with the Interest of Patrons in Benefices we have already shown their Original and Kindes their interest in the Benefices or Stipends is first the Right of Presentation of a qualified person for the Ministry whom the Presbytrie behoved to try and admit if he were qualified whereanent the Patron might appeal to the Synod and thence to the General Assembly and if that person be still rejected he must present another which must be done within six moneths after the Vacancy may come to his knowledge Otherways the Kirk may admit a qualified person for that time Par. 1592. cap. 115. Par. 1606. cap. 2. Par. 1609. cap. 12. Since the Restitution of Bishops Presentations must be directed to them in their several Diocesses Secondly During the Vacancy without the Patrons default but by the default of the Presbytery refusing to admit a qualified person he had
Grassum before and therefore Rentals expresly so granted or to tennents Constitute kindly tennents though they contain no Ish should not be annulled for want of an Ish which is implyed in the nature of a Rental to be a Life-rent and it would be far contrary to that favour that in other cases is allowed them to sustain them but as verbal Tacks lasting for a year Upon this ground it is that a Rental granted to a man and his wife not bearing the longest liver nor any issue was yet found to Constitute them both Rentallers during their life and their wife surviving to enjoy the same February 20. 1629. Laird of Ley younger contra Kirkwood 21. Rentals do ordinarly contain a Clause not to subset assign or annalzie which if it be contraveened not only the assignation or sub-tack is void but the Rental it self February 28. 1610. John Hamiltoun contra Thomas Boid The like being subset as to a part pro tanto Hope rentals Lord Douglas contra Walkinshaw But if the Assignation or Sub-tack was to the Major part it did annul the whole Rental November 13. 22. Laird of Craigie Wallace contra his Tennents Yea though the Subtack was only granted for certain years and these expyred before the pursuit Hope rentals Earl of Roxburgh contra Ker. This is so far extended as being in the nature of a Rental without any such Clause that it falleth in whole in the same manner as Ward-lands recognosce by alienating or subsetting the whole or major part if Possession follow and that by exception or reply March 15. 1631. Earl of Galloway contra Burgesses of Wigtoun Though the alienation was by Excambion and was conditional if the Heretor consented else to be null The like where the Rentaller had given a Disposition of the Rentalled Room whereupon the acquirer was in possession which was found to annull the Rental albeit it bore Assigneys and to exclude a Sub-tack by the Rentaller to that same party before any contraversie moved February 21. 1632. Laird of Johnstoun contra Jamison The like though the Sub-tennents offered to repone the Rentaller November 13. 1622. Bonar contra Nicolson The like upon an Assignation of an Rental though it contained a power to sub-set and in-put and out-put Tennents March 21. 1623. Laird of Craigie Wallace contra his Tennents But this taketh no place if the Sub-tack be set to the Rentallers eldest son who was to succeed March 19. 1622. Earl of Roxburgh contra Robert Gray It will also be elided if the Heretor receive duty from the Assigney as Assigney Hopehic Laird of Craigie contra his Tennents But it will not be inferred by the Rentallers entering another in Possession without granting him a Right in Write July 5. 1625. Laird of Aitoun contra Laird of Wedderburn last of January 1633. Laird of Cleghorn contra Crawfoord unless the Rental contain an obliegement to put no other in Possession and then it became null by granting tollerance and that by exception against the person having tollerance without calling the Rentaller July 15. 1628. Maxwel contra A Rental setting the keeping of a House Yard and others to the Rentaller and his Heirs as kindly Tennents was not found null by demolishing the House and Yard whereby the Rentaller failed in his duty and in the cause of granting the Rental January 29. 1628. Duke of Lennox contra Houstoun 22. A Sub-tack is that which is granted by the principal Tacks-man to his Subtennent who doth not thereby become Tennent to the setter of the principal Tack this is competent to Tacks-men where Lands are set to them or their Subtennents or that they have power to out-put and in-put Tennents and it is like a subaltern Infeftment it hath the same effect to defend the possession as the principal Tack it self if it be cled with possession and cannot be taken away by any Renounciation granted by the principal Tacks-man though his Tack bore not Assigneys but though it be not observed it hath born either power to in-put Tennents or Sub-tennents July 14. 1625. Earl of Mortoun contra his Tennents Yea when the principal Tack was reduced for not production the Sub-tacks-men not having been called the Sub-tack was sustained as a defence notwithstanding the Reduction seing the Heretor had consented to the Sub-tack December 13. 1626. Earl of Galloway contra Meculloch Yet otherways the Heretor is not oblieged to know the Sub-tack nor to call the Sub-tacksmen in the Reduction of the principal Tack and it becomes null by exception unless the Substacks-man had appeared and produced his interest in the Reduction or in the second instance can propone a defence sufficient for the principal Tacks-man or himself after which it did not defend him as bon a fidei possessor after Inhibition or drawing the teind Decem. 11. 1623. Earl of Wigtoun contra Parochioners of Stobo but otherways the Sub-tack would be sufficient till warning This is the effect of a Sub-tack passive but active it is not a sufficient title to pursue without instructing the principal Tack unless it had been acknowledged by the defender or cled with possession sufficient for a possessory Judgement March 29. 1622. Sir James Cleiland contra Tennents of Arbuckle For in Intrusions or Ejections Sole Possession is the Title 23. Tacite Relocation is that which is presumed to be the minde of both parties after expiring of a Tack when neither the setter warneth nor the Tacks-man renounceth for other significations of the alterations of their mindes will not suffice these being the habile way of voiding Tacks which is now much more strengthened by the Statute Prohibiting tennents to be put out without warning before Whitsonday But where warning is not requisite though other competent ways of evacuating the Tack will be sufficient as Inhibition in teinds or actions for removing summarly from Fortalices Coalheughts c. Yea though warning hath been used if it prescrive by three years not pursuing thereupon it hath no effect even against tacite Relocation July 6. 1610. Mr. Robert Bruice contra Captain Andrew Bruice There is a kind of tacite Relocation by taking the Rent before the hand during which time as Craig observeth in the forecited place the setter cannot remove the Defuncts Successor for the years ensuing in both which cases he is understood to relocate tacitely by these deeds Tacite Relocation hath the same effect to maintain Possession that the Tack had even against singular Successors and that not only to the Tacksmen but to the sub-tennents being Possessors who alledged the principal Tacks-man was not warned and were not oblieged to alledge he had a Tack for terms to run but only that he was not warned December 2. 1628. Mr. Walter Whitefoord contra Johnstoun But where the Sub-tennent was warned tacite Ralocation alledged by the Sub-tennent was not sustained without producing a standing Tack to the principal Tacks-man January 30. 1663 Riccart contra Laird of Udnie Here the warning was by a singular
Successor who is oblieged to know or warn none but the natural Possessor which was not in the former case And tacite Relocation will be sufficient after a verbal Tack or where the Tack is presumed upon use of payment though none can be shown or proven Yea tacite Relocation was sustained for more years then the setter could expresly set and is ordinarly in the case of tacite Relocation upon Liferenters Tacks which continue still after their death till warning and was so found in a Patrons Tack of teinds after the Patrons right to set by the Act of Par. 1649. was rescinded January 16. 1663. Earl of Errol contra Tennents of Urie Relocation is valide against the Donatar of a Ward till Warning or Citation though the Tack-duty be elusory and that the Tack then sleep Spots removing Laird of Lie contra Glen of Barn But tacite Relocation is no relevant active Title against any but these who have right from the Tacks-man though they had acknowledged the same by payment to him for years anterior Decem. 12. 1621. Laird of Lag contra Porochioners of Leymon By what hath been said it may appear that the force and effect of Tacks is so great by reason of the foresaid Statute and Custom extending the same that it would swallow up all Heretable Rights and make Infeftments useless unless Tacks had their own Retrincnments and defects making Infeftments necessary 24. First Tacks not being Liferent-tacks fall in single Escheat but these fall by Liferent-escheat Par. 1617. cap 15. 25. Secondly Tacks have no effect against Superiours but sleep during the time of Wards Non-entires c. For Infeftments Feu are then valide only in some cases Yet Tacks are valide against Liferent-escheat which is a casuality falling not by the nature of Fees but by Statute or Custom Vide Title 14. § Liferent-escheat 26. Thirdly Tacks are strictissimi juris and no further extended then is exprest and therefore are not extended to Assigneys unless exprest and therefore Tacks granted to Women fall by their Marriage which is a legal Assignation and cannot be annulled yet may revive by the Husbands death unexpired Vide Craig lib. 2. Dieges 10. Upon the same ground a Tack not bearing to Assigneys was not found to accress to a Relict as infeft with absolute Warrandice as jus superveniens authori June 18. 1680. Margaret Home contra Janet Lyel which is to be limited thus that it doth not exclude legal Assignations by Appryzing and Adjudication But only voluntary Assignations Hope hic Lord Elphingstoun contra Laird of Airth November 16. 1680. Drummond of Carlourie contra Sir John Dalrymple Liferent-tacks also may be assigned not mentioning assigneys February last 1637. Home contra Craw. July 16. 1672. Duff contra Fouler The like when it is of more value then a Liferent-tack as being of many nineteen years Spots hic Ross contra Blair The like holdeth in the power of making Sub-tacks or out-putting and inputting of Tennents or Removings which are not competent thereupon unless express or unless it be against these who had the possession from the Tacks-man except in Liferent-tacks and these of greater importance 27. Tacks cannot be perpetual and therefore necessarly must have an Ish or else they are null what favour is herein granted to Rentals is herein showen 28. If there be no particular Ish but to endure till the payment of a sum it hath been variously decided whether it be effectual against a singular Successor negative July 13. 1621. Laird of Mckal contra his Tennents March 5. 1629. Laird of Lie younger contra Kirkwood Affirmative Hope hic Laird of Clackmannan contra Tennents of Balmaino The like in a Tack set to a Smith so long as he should worke the setters work July 11. 1610. Sir James Lundie contra Smith of Lundie This is unquestionable in Back-tacks which have no Ish but during the Non-redemption And in other cases the Affirmative is stronger both in reason and practice but it holds not if it be but an obliegement not to remove the Tennent until such a sum be payed that is only personal And neither a Tack nor an obliegement for a Tack unless it be contained in a tack bearing such a sum to be due to the tacks-man and for seourity thereof the Lands to be set and the rent to be as satisfaction of the Annualrent pro tanto was found valide against a singular Successor and that the tack wanted not an Ish because the payment of the Money was the Ish January 22. 1625. Isobel Ronald contra Strang. But the contrary was found March 5. 1629. Laird of Lie contra Kirkwood A Bond assigning to the Ferms till a sum were payed was not found valid against a singular Successor July 2. 1624. Mitchelson contra Law So a tack set for seven years for a certain tack-duty exprest with a Clause that the tacks-man should retain a part of the tack-duty for the annualrent of a sum due to him by the setter and should not be removed till the sum were payed was found valide against a singular Successor for the seven years because there was an excresce above the annualrent which remained for the Tack-duty but not for the rest being but a personal obliegement not to remove June 15. 1664. Thomson contra Reid January 27. 1674. Peacock contra Lauder The like where a Tack was set by a Liferenter for four years And while a sum were payed found valide against the Liferenters Assignayes the 18 of December 1668. Mr. Robert Smitoun contra Mr. John Brown The like was found in a Tack against an Appryzer allowing the Tack-duty for the annualrent of the sums there remaining a several Tack-duty December 11. 1677. Charles Oliphant contra James Currie 29. Fifthly Tacks are not valide as real rights against singular Successors unless they have a Tack-duty yea if they have one but in the Tack it self it be wholly discharged yet the Tack is valide neither will the discharge of the Tack-duty be valide against the setters singular Successor January 31. 1627. Mr. James Ross contra Blair 30. But the want of an Entry vitiats not a Tack for when there is no Entry the date or the next Term is the Entry December 4. 1629. Mr. William Oliphant contra Mr. Heugh Peebles 31. Sixthly All Tennents are burdened with necessity to enter and labour the ground that the Master may have ready execution February 27. 1623. Samfoord contra Crombie and not to rive out Meadow or Greens never plowed or destroy Mosses or deteriorat the ground worse nor he found it February 6. 1633. Laird of Haddo contra Johnstouns and must leave the Houses as good as at his entry February 27. 1610. contra All which are without express provision Neither may the Tennent open the ground for winning of any Mineral Coal or Clay for Pipes without that power be exprest the 15. of February 1668. John Colqhoun contra Watson Seventhly Albeit Tacks be by Statute as real
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
the possessor or his predecessor November 27. 1677. Graunt of Ballindalloch contra Graunt of Balvey Whereupon it was alledged that a Tennent possessing by Tack from his Master could not prescrive against him which was not respected in this case nor in that of the Countess of Murray contra Mr. Robert Weyms Feb. 20. 1675. The like June 4. 1675. Colledge of Aberdeen contra Earl of Northesk But all annual prestations preceeding fourty years prescrive though constantly payed for thirty nine years every year being a several obliegement though in one write and prescrives severally January 19. 1669. Earl of Athol contra Laird of Strowan It holds also in Annualrents July 22. 1671. and Feb. 7. 1672. Blair of Balleid contra Blair of Denhead But it cannot be extended to prescrive against a Superiour for not payment of the reddendo because a right of Property cannot consist without Superiority unless there be a Right taken from another Superiour 25. Prescription doth not only exclude the preference of other better Rights which if insisted upon within prescription would have been preferred as anterior and thereby the posterior right a non habente potestatem But all ground of Reduction by the King or other Superiours or Authors is excluded So that the neglect of the Kings Officers cannot be obtruded by the Act of Parliament declaring that their neglects shall not prejudge the King neither any nullity in the titles of prescription except it be in the essentials thereof So prescription cannot sustain a perpetual Tack without Ish which is essential thereto nor a Seasine without a Symbol generally or particularly or not given upon the ground of the Land But all requisites in Rights introduced by Custom or Statute and not essential thereto are cut off by Prescription 26. The main Exception or Reply against Prescription is Interruption not only by the discontinuing the possession of the whole but also of a part which was found sufficient to interrupt the Prescription as to the whole as an Infeftment of Thirlage and possssion of Corns growing upon the Lands was found sufficient to exclude the prescription of the Multures of invecta illata June 29. 1635. Laird of 〈◊〉 contra Home of Foord So likewayes payment of Annualrents within fourty years interrupts prescription of Bonds and that not only as to the party paying but payment made by the principal Debitor was found to interrupt prescription as to the Cautioner who never payed nor was pursued during the space of fourty years December 18. 1667. Sir Thomas Nicolson of Carnock contra Laird of Philorth December 18. 1667. Gairns contra Arthur And an Annualrent constitute out of two Tenements was found unprescrived as to both by uplifting the Annualrent out of either though that the one was now fourty years in the hands of a fingular Successor June 22. 1671. Lord Balmirrano contra Hamiltoun of Little-prestoun Prescription is ordinarly interrupted and excluded by the dependence of any action whereupon the right might have been taken away or impeded Hope Patronage Laird of Glenurchie contra Alexander Campbel Idem Tacks and Tennents Carnousie contra Keith even though there was only the first Summons without continuation or second Summons February 13. 1665. James Butter contra Gray yea though the pursuer past from the Summons pro loco tempore Hope Removing Sir Robert Douglas contra Lord Herreis or by a Transferrence though reducible because not proceeding upon the right Title seing the right Title was also in the pursuers person July 26. 1637. Laird of Lawers contra Dumbar The like though the pursute might have been excluded for want of solemnity in re antiqua where the custom was not clear November 25. 1665. White contra Horn. Yea an Annualrent was found interrupted by a poinding of the ground though therein the Heretor was not called June 15. 1666. Sir Robert Sinclair contra Laird of Howstoun Prescription was also found validly interrupted by a Charge of Horning upon the Bond in question albeit proceeding only upon summar Registration by the Clause in the Bond and by no Citation July 21. 1629. David Moris contra Johnstoun But Warning whereupon nothing followed was not found a sufficient interruption of an old Tack-duty Hope possession Mr. Robert Bruce contra Captain Andrew Bruce Idem March contra Keir Neither was it found sufficient to interrupt prescription in the first part of a mutual Contract that action was used upon the second which saved the second from prescription seing the party concerned in the first neither used action or charge thereupon nor founded exception upon it when pursued by the oaher party November 27. 1630. Lauder contra Colmill Interruption was also sustained upon a Citation at the instance of a party not then entered Heir being entered thereafter within the years of Prescription The like upon a Summons of Reduction upon Minority though it was not filled up within the fourty years being insinuat in the Title of the Summons that Minors have interest to reduce deeds to their lesion July 14. 1669. Earl Marishal contra Leith of Whitehaugh But Interruption was not sustained from the Citation in a Summons of Reduction ex capite Inhibitionis but from filling up of the reason February 11. 1681. Kennuay contra Crawford And it was sustained upon Citation upon the second Summons being only a day before the year was compleat albeit the first Summons should be found null and though the Citation was at the Mercat-cross upon a priviledged Warrand purchased upon pretence that non fuit tutus accessus past of course among the common Bills and the reason of the priviledge was neither true nor instructed and though the execution bore not a Copy left at the Cross the party adding that and abiding thereby as truly done be the executor of the Summons July 6 1671. John Mackbra contra Lord Mcdonald Interruption was also sustained upon a Citation in a Reduction in Anno 1630. 〈◊〉 the Execution bore not the name of the pursuer or defender but the parties within mentioned And were not written upon the back of the Summonds but upon a louse Shedul and the Citation was in the last of the thirteen years excepted from prescription against a party of great quality against whom many interruptions were like then to have been used The user of the Interruption Deponing that he received the same from his Father or amongst his Evidents and knew not that they were the Executions of other Summonds Feb. 11. 1677. Laird of Rewallan contra Lawson of Cairnmuire But Interruption was not sustained upon summar Registration without Citation or Charge January 12. 1672. James Johnstoun contra Lord Balheaven And Interruption by warning and Citation thereupon was not found effectual in a Competition betwixt two parties both being then in acquirenda possessione by prescription and neither having a sufficient Right Constitute before unless the party warned and cited had discontinued his pessession for a year at least January 1680. Brown of Hunthil contra
appryzing was found effectual against his Successors by translation July 6. 1676. Sir Lodovick Gordoun contra Skeen and Crawford But the Back-bond of an assigney to a Disposition of Land not drawn in question till the assigneys singular Successor was Infeft upon his translation was not found effectual against the singular Successor June 20. 1676. Brown contra Smith For if assignations Back-ponds or even Discharges or Renunciations of redeemable Dispositions of Lands were effectual against singular Successors in these Lands after the Rights were perfected in their own persons or their authors by Infeftment it might in a great part disappoint the design of these excellent Statutes for Registration of Land rights therefore unless Inhibition were used or the matter made Litigious upon these personal Rights before Infeftment they are not habile to affect a real right or a singular Successor therein but because appryzings within the legal may be taken away in the same manner as personal rights therefore the assignations discharges and back bonds by these who have right to the appryzing being made within the legal are effectual if thereupon the matter be made litigious before the expyry of the Legal Reversion or Inhibition used thereupon they will be effectual against the singular successors even after the Legal is expyred but after expyry of the Legal Infeftments upon appryzings are in the same case as Infeftments upon Irredeemable Dispositions for they are the foundation of the rights of most Lands in the Kingdom and if personal Rights should make them insecure after the expyry of the legal it would be of great inconvenience 22. Assigneys by Tutors to their Pupils Bonds will have no execution till the Tutors counts be made by the Cedent Decem. 2. 1679. James Cleiland contra Bailzie of Lamingtoun 23. It is more dubious and hath been diversly decided when the exceptions are personal against the Cedent in mutual Contracts the Contracter himself can have no action unless he fulfil his part but whether his assigney will be in the like case is the question which is at large cleared Tit. 10. § 16. and therefore shall not be here repeated Judicial assignations are oftwo sorts according to the matter conveyed thereby which if it be moveable is conveyed from the debitor to his Creditor by arrestment and decreet for making the arrested sums and goods forthcoming and if it be Heretable by appryzing or adjudication As to the first that the progress upon arrestment may be clearly taken up we shall first consider the arrestment it self Secondly The lousing of it Thirdly The action for making forthcoming Arrestment is a precept or command of a Judge ordaining the thing arrested to remain in the same case it is when arrested till such things be done as are prescribed in the precept or Letters of arrestment It is sometimes extended to any preparatory Precept of a Judge antecedent unto any further process so the first Citation or securing of persons till tryal were made or surety found it s called an arrestment or attatchment as appears in the force of the Crowners arreftments of Delinquents Par. 1487. cap. 99. Par. 1528. cap. 5. But arrestment proceeds most ordinarly upon an Interlocutor sentence as when parties are contending for Peats Turffs or Corn upon debateable Land these use to be arrested till the mater be decided whereby the thing arrested becomes litigious and any thing done to the contrary hath the effect of breach of arrestment and is of the Nature of innovatalite dependente which therefore must be summarly restored and put in statu quo and brings no advantage but loss to the actor 24. But arrestment which we are now about is Precept or Letters of arrestment arresting Debts or Goods in the hands of any party haver thereof at the instance of the Creditor of him to whom the Debts or Goods belong to remain under arrestment untill the debt whereupon the arrestment proceeds be secured or satisfied therefore arrestments may be granted by all Judges ordinar Superior or Inferior but the arrestment of an Inferior Judge was only found effectual in Process before himself and before no other Inferiour Judge March 8. 1634. Smith contra Miller But upon occasion of this debate most of the Lords thought an Inferiour Judge might proceed upon the Lords arrestment passing in the Kings name and there is not wanting ground to think that an Inferiour Judge may proceed upon the arrestment of another seing all of them proceed alone upon the Kings authority as if the defender change his Domicile An arrestment made by the Inferiour Judge where hedwelt before ought not to be ineffectual nor he necessitate to pursue before the Lords as was found in an arrestment before the Admiral March 22 1637. 〈◊〉 contra Gray Yet an arrestment upon the Precept of an Inferiour Judge was found null because execute without the Jurisdiction of that Judge although the party in whose hands it was made dw eltwithin the Jurisdiction Decem. 5. 1671. Mr. Andrew Miller contra Orsburn Crawford and the Laird of Bishoptoun The reason hereof was no execution is valid Extra tertitorium Judicis which doth not conclude against the arrestment of an Inferiour Judge made within his own Jurisdiction but that it would be sustained against that party in any Process before the Lords or any Superiour having cumulative Jurisdiction or even before a Co-ordinat or Inferiour Jurisdiction in which if any question were made the Lords by Letters of supplement would readily auctorize the same Arrestment requires no other solemnity but the execution thereof by him to whom the Letters are directed which requires the like requisites as other executions do of which hereafter 25. There hath been an extraordinary form of arrestment sometime used and sustained whereby Creditors did arrest the Goods of their Debitors in the Debitors own hand and thereupon did pursue such as bought from them whereof there is an instance observed by Dury Jan. 10. 1624. betwixt the Laird of Innerweek John Wilkie and the Lady Bothwel wherein Innerweek having arrested a parcel of Wool in the Lady Botwels hand upon a debt owing by her to him and she having thereafter sold the Wool to John Wilkie who payed the price he was decerned to make forthcoming the true worth of the Wool to Innerweek although nothing appears instructed that there was any Collusion betwixt the Lady Bothwel and Wilkie but what may be conjectured from the Lords allowing the price of the Wool This kind of arrestment hath not been drawn in example for I have found no instance of it observed by any since that time and as the instance observed is but the arrestment of one particular if it were to be allowed it might be extended to more particulars even to all the moveable Goods and Means of the debitor and certainly it would be ordinarly so used as straitning the debitor more that he could dispose of nothing but to the use of the arresting Creditor and so it would become
Creditor to the debitor by delay of the term June 20. 1678. Scot of Burn-foot contra Falconer and Edmistoun 31. Albeit the Lords do not ordinarly modifie Penalties after appryzing yet if they be exorbitant they do modifie the same and all Termly Failzies as they did in the said case of Orrock of Balram and Francis Irvin 32. Appryzing was sustained upon a sum payable without Requisition albeit there was no Charge preceeding the appryzing July 21. 1666. Mr. John Thomson contra Mcgutrig The like though the Bond bore annualrent before 1641. seing there was no Infeftment thereupon or Requisition therein Jan. 14. 1679. Farquhar of Finian contra Robert Stuart 33. And an appryzing was sustained though the Lands appryzed were not filled up in the Letters of appryzing or special Charge nor in the Executions because the Messenger who execute was Judge in the Appryzing which relating the Denunciation of the Lands particularly and Charging the appearand heir to Enter thereto in special was found a more solemn Execution then any Execution a-part Jan. 16. 1680. John Brown contra Nicol. 34. An appryzing was sustained without producing the Letters of appryzing being in anno 1636. But the Instructions of the debt was found necessary to be produced being within Prescription February 11. 1681. James Kenuay contra Thomas Crawford Yea an appryzing was sustained upon a Bond payable upon Requisition though the appryzing made no mention of the Requisition the Instrument of Requisition being produced 35. And though the Dispensation to appryze was neither at Edinburgh nor the head Burgh of the Shire but a place upon the open Fields and upon a count of a great rain the Messenger did not appryze that day but adjurned the Court of appryzing til the next day July 12. 1671. the heirs Mr. Thomas Lundie contra the Earl of Southesk 36. And an appryzing of the ground-right of Lands and all other right belonging to his debititor the Superiour being Charged thereupon was preferred to a posteriour appryzer who appryzed particularly an annualrent out of the Lands which was the only Right of the common debitor November 21. 1673. Mr. John Fairholm contra Rentoun and the Countess of Levin 37. Appryzings are elided by satisfaction or payment without necessity of Renunciation Resignation or Reduction as in the case of other Infeftment July 25. 1626. Lord Lovat contra Frazer The reason is because appryzing being but a legal diligence for security of the sum which ceassing it falleth without other solemnities and the dobitors own Infeftment stands valid without Renovation which with the Infeftment upon the Appryzing stood but as a paralel Right for security so that all returned adpristinum statum and amongst the rest the Casualities of the Superiority if they were taken off by the appryzing and therefore an heir not entering but being Chargeed if he satisfie and redeem the appryzing he will be in non-entry till he be received of new 38. Appryzings are excluded and qualified with the Back-bonds and obliegements of the appryzer as in personal Rights which are valid against singular Successors as a back-bond that an apprysing should not be prejudicial to anothers parties Right was found relevant against the appryzers singular Successor the Kings Donatar of the appryzers forefaulture July 31. 1666. the Earl of Southesk contra Marquess of Huntly The last and most ordinary Exstintcion of appryzing is by Intromission with the Mails and Duties of the appryzed Land over and above the annualrent for these are imputed in the principal Sum by the Statute Par. 1621. cap. 6. which is also extended to Minors having the priviledge after the ordinary legal of seven year But it was not provided for in the said Statute that the appryzer should be countable for his Intromission thereafter which is therefore provided for Par. 1641. cap. 67. which though it was neglected and not revived Par. 1661. yet the Lords sustained the same as now in Custom twenty years and more Feb. 18. 1663. John Ross contra Mckenzie But the Tenor of the said first Statute being that the quantities of the Mails and Duties shall extend to as much as will satisfie the whole principal sum and annualrents thereof composition to the Superiour and annualrent thereof and expenses in deducing the appryzing In that case the appryzing is declared to expyre ipso facto So that if any part thereof remain and the debitor be so negligent as not to use an Order and count and reckoning within the legal but suffer it to expire the appryzing will stand valid and carry the Right of the whole Lands and will not be extinct in so far as satisfied proportionally Hope Confirmation Doctor kincaid contra Halyburtoun which was so found where a part of the sum was satisfied by payment Novem. 28. 1623. Mr. Robert Craig contra Wilson But if the remainer be very small the Lords may be the more strict in modifying pryces and if that be not sufficient a small remainder will not take away the Right de minimis non curat Lex Intromission is not only extended to the Rents and Profits of the appryzed Lands but to the pryce of any part thereof sold by the appryzer within the Legal Jan. 14. 1669. Mckenzie contra Ross. And ansappryzing was also found extinct by the Intromission of him to whom the appryzer granted Back-bond declaring the appryzing to be to his behove and that against a singular Successor who thereafter was Infeft upon the appryzers Resignation July 12. 1670. Kennedy contra Cunninghame and Wallace Yea An appryzing was found excluded as being satisfied by the debitor and retired by him with a blank Assignation thereto lying by him at his death though his Son thereafter filled up his name therein which was instructed by the sons oath and witnesses ex officio Feb. 27. 1666. Creditors of the Lord Gray contra the Lord Gray But an appryzing was not found extinct by Intromission where the appryzer payed to his debitor the superplus of the rent above his annualrent before the leading of any other appryzing yet where any order of Redemption is used before the expyrie of the legal the appryzing was found extinct by intromission after the course of the legal July 7. 1676. John Edgar contra Patrick Milu The like was found in respect of an order used by a second appryzer and was sustained though the first appryzer had acquired right to an order of Redemption by a third appryzer used against the second appryzer which was not found to hinder the second appryzer to declare the first appryzing satisfied by Intromission during the legal or the order but prejudice to the third appryzer or to the first appryzer having Right from the third appryzer to Redeem the Lands from the second appryzer by satisfaction of the sums due to him July 18. 1676. Gordoun of Seatoun contra Watson Yea an appryzing being both against the Principal and Cautioners Estates an order of Redemption used by the principal debitor was found to keep the appryzing
was found to have no Aliment from his Mothers Life-rent who brought 8000. Merks of Tocher and had but 10. Chalders of Victual in Life-rent July 21. 1626. Laird of Ramorny contra Law The like where the Heir was not Minor but designed himself Preacher and so having a calling Feb. 11. 1636. Sibbald contra Wallace Here the Relict was Infeft in no Land but had an Annualrent of 400. Merks out of Land and the Heir was not Minor Whereas the Lords thought the Act of Parliament was not in favours of Majors who ought to do for themselves but all must be considered complexly in this Decision Some Heirs by their Quality not being bound to follow Callings but the Life-rent was a mean Annualrent no more then an Aliment to the Relict the Pursuer Major and having a calling And certainly where the Life-rent is but an Aliment the appearand Heir must rather want then the Person provided for a cause onerous Though the Act mention only Ward Lands yet it was extended to a Minor having no Ward Lands against a Life-renter of all his Fstate being Houses and Annualrent of Money Feb. 22. 1631. Fiinnie contra Oliphant In this case it was not found sufficient that the Life-renter offered to maintain the Minor her own Child upon her own charges she being married to a second Husband But the Tutor obtained modisication with consideration of the moveable Heirship on the contrary where the Mother was not married her offer of Intertainment was received July 14. 〈◊〉 Alexander Noble and his Tutors contra his Mother Neither was the modifi cation excluded because there were free Lands at the Defuncft Death seing they were appryzed thereafter for the Defuncts debt Hope de haered White contra Caldwall The like the debt being great and the Annualrent thereof equivalent to the rent of the Lands not Liferented Feb. 13. 1662. Antonia Broun contra her Mother But Aliment was not found due by a Father Life-renter to his Son on this Act but only super Jure Naturae July 21. 1636. Laird of Rumorney contra Law Nor by a Grand-father to his Oye who had disponed his Estate to his Son reserving his Life-rent of a part the rest unsold by his Son being Life-rented by his Wife July 7. 1629. Hamilton contra his Goodsir But where the Heirs Mother brought a great Tougher and the Grand-father fell to a plentiful Estate by his Brother the Heir was found to have Aliment of his Goodsir though he disponed the Land to the Heirs Father burdened with his Mothers Life-rent June 27. 1662. Heir of Gairn contra Laird of Gairn This behoved not to be from the Statute but ex debito naturali Aliment was found due by a Liferenter to her daughter the appearand Heir though she renounced to be Heir July 16. 1667. Hamilton contra Symonton But where a Father disponed to his Son a part of his Estate reserving his Life-rent and another to his Son and his Wife in Conjunctfie after his Sons Death his appearand Heir got no part of his Aliment from his Goodsir but only from his Mother Feb. 26. 1675. Sr. John Whitfoord contra Laird of Lamington Aliment was found due to the Heir by an Asigney to a Gift of Ward without necessity to prove that he intromitted with the Ward Lands unlesse he had been Legally excluded which was Modified by the Lords And it was not found sufficient to intertain him in the Assignyes Family but nothing was Modified for that time that the Minors Mother Alimented him gratis Feb. 19. 1679. Sibbald of Cair contra Sr. Alexander Ealconer 4. Heirs also not entered have the benifite of such obliegments or provisions conceived in Favours of Heirs which by their Nature or Meaning require to be fulfilled before the Heirs entry As when a Party was obleiged to imploy a Sum upon Land and to procure himself and his Umquhil Spouse Infeft therein in Life-rent and the Heirs Procreat betwixt them in Fee the Bairn of the Marriage who would fall Heir was thereby found to have Right to crave his Father to imploy the Money accordingly though he never was nor actually could be Heir his Father being alive December 16. 1628. Laird of Collington contra Granton In this case the Lords inclined so to decide but decided not But that day Durie observes a like case decided July 7. 1632. Young contra Young The like was decided Feb. 13. 1677. Alexander Frazer contra John Frazer In which case a Father by his Contract of Marriage being obleiged to imploy a certain Sum upon security to Him and his Wife in Conjunct-fee and to the Heirs of the Marriage and likewise to take all Conquest during the Marriage the one half to the Wife in Life-rent and the other to the Heir of the Marriage in Fee after the Wifes Death Process was sustained at the instance of the apparent Heir of the Marriage against his Father who was decerned to imploy the special Sum to himself and after his decease to the Heir apparent of the Marriage albeit therby the Father would remain Fiar and might dispone or burden the Sum so imployed for reasonable Considerations but not by Deeds meerly gratuitous to evacuat the obleigment And if he did Deeds prejudicial he would be obleiged to purge the same or re-imploy 〈◊〉 But it was not so found as to the Conquest before the Marriage which might be altered during his Life for that only could be accounted Conquest that he had more at his Death then at his Marriage And so Heirs of a Marriage in an obleigment in case a Wife deceased without surviving Heirs of the Marriage these were Interpret Bairns of the Marriage who survived their Mother but died before their Father and so could never be served Heir to him January 26. 1630. Turnbul contra Colinshlie The like where a Father was obleiged to Infeft himself and his Spouse in Conjunct-fee and the Heirs procreat betwixt them c. The apparent Heir was found to have interest to pursue the Father for fulfilling thereof and of the obleigment adjoyned not to dispone in their prejudice Hope de haeredibus Hamilton contra Silvertonhil Tacks set to Heirs require no service but being Notour to be the Person who might be served Heir they have right without service June 9. 1675. Hoom contra Johnston of Oldwells 5. As to the benifit of Heirs they have Right not only to Obleigments conceived in favours of the Defunct and his Heirs But though there be no mention of Heirs unlesse by the nature of the obleigment there be a speciallity appropriating the same to the Person of the Defunct only as in Commissions Trusts c. So Heirs were found to have the benifit of a promise made to their Predicessors for disponing of Lands to him acquired for his use though it mentioned not Heirs Feb. 22. 1610. Heir of Jean 〈◊〉 contra Livingston The like of a Reversion not mentioning Heirs which was thought to be omitted by neglect seing it bore not
successors right because being only probable by oath of party the oath of the author will not prove against his singular successor Neither will Declarations Back-bands or conditions of Trust be comprehended under Reversions but they remain obliegements personal upon the person intrusted unless they contain express obliegement to re-dispone which is a reversion albeit it be not formal or if it bear to denude himself in favours of the disponer or any other but if it be but in trust to his behove though thereupon via actionis he might be compelled to denude yet is no reversion and however hath no effect against singular successors unless they be registrate as aforesaid except in so far as they may be grounds of reduction against the parties intrusted or their singular successors partakers of the fraud 6. It is also frequently provided in Reversions That if the condition of the Reversion be not performed betwixt and such a time the reversion shall expire and sometimes it is provided so to be ipso facto without Declarator This is a clause irritant irritating or annulling the Reversion which in the Civil Law is called Pactum Legis Commissoriae in pignoribus and is thereby rejected and void as an usurary paction whereby the Wodsetter getteth more then his just interest as a penalty which therefore as in other cases ought to be modified to the just interest especially seing indigent Debitors through necessity of borrowing money will be easily induced to such Clauses And therefore a Back-band for redemption of a Tenement bearing such a Clause irritant was found null two years after the terme and after a Decreet of removing all meliorations being satisfied July 8. 1636. Cleghorn contra Ferguson The like was found in an Assignation to a Bond under reversion of a smaller sum which was found penal and modified to the just interest June 25. 1623. Mitchel contra Robson Yet such clauses irritant are effectual upon the failie committed unless they be purged by performance which is ordinarly received when offered at the bar in the Declarator of the expirie of the reversion So was it found purgeable at the instance of the Reversers Creditors 19. of March 1631. Doctor Scot contra Dickson of Headrig Yea though the payment be not present a time will be granted before the Extract of the Decreet of Declarator of the expirie of the reversion that in the mean time the failie may be purged Feb. 7. 1628. Pringle contra Ker but no such time was granted where the requisition was upon ninescore dayes but Decreet was given unless present payment were made July 19. 1625. Nairn contra Napier But Clauses irritant in Reversions are only thus qualified in real Impignorations but when the reversion is of a true sale not in security but for an equivalent price or where it is granted after the right related to and not for implement of a promise or condition made at that time it is valid for only pactum legis Commissoriae in pignoribus is rejected in Law And therefore the Irritancie was not found purgeable before the Declarator where the Reversion was of Lands disponed for a competent price by a true sale January 17. 1679. James Beatsone contra Harrower A Bond bearing that failing Heirs-male of the granter and of his Brothers bodie that the Heirs-female should denude in favours of a Sisters son upon payment of a certain sum being registrat in the Register of Reversions was found valid against a singular Successor as a conditional reversion and not as a substitution albeit the Bond was granted by an Heretor and that the Land was never wodset but became redeemable by this Bond and was not prejudged by a posterior Liferent granted by that Heretor in favours of his Wife which would have been effectual if it had been a substitution But the sum upon which the Heir-female was oblieged to denude was ordained to be re-imployed for the Wife in Liferent January 16. 1679. Laird of Lambertoun contra Lady Blanergesk 7. As to the nature of Reversions they are stricti juris and not to be extended beyond what is exprest and so not to be extended to the sAssigneys of the reverser when not exprest yea not to his Heirs unless it be so exprest but where Heirs of the Reverser were not exprest without adjecting the ordinary clause of paying the debt to the Wodsetter by the Reverser any time during his life and so Heirs were not found omitted dedita opera but by negligence they were not excluded January 9. 1662. Earl of Murray contra Laird of Graunt And a Reversion taken by a father disponing to his son found to be extended against the Heirs of the son though Heirs were not mentioned Feb. 6. 1630. Muir contra Muir The like Spots redemption William Hamilton contra Hamiltons And therefore the day of consignation being appointed eight dayes after the terme the Consignation was not sustained at the terme it self though these dayes were introduced in the Reversers favours July 12. 1634. Lord Balmerino contra Eliot of Stobs Yet where the Reversion bore the premonition to be at the Paroch-Church it was sustained being used only personally Decemb. 11. 1638. Finlason contra Weyms And where the Reversion did bear consignation at the Creditors house in London it was sustained being at his successors house at Edinburgh Feb. 1. 1667. Creditors of Sir James Murray contra Sir James Murray 8. The constitution or nature of Wodsets being thus cleared as to the kindes thereof Wodsets are either proper or improper and they are either publick or base 9. A proper Wodset is where the fruits of the thing Wodset are only given for the annual-rent of the sum and the hazard or benefit thereof whether it rise or fall is the Wodsetters and there hath never been any case decided finding such proper Wodsets usurary upon exorbitancy of profite But by the Act of Par. 1661. betwixt Debitor and Creditor all Wodsets before that Act though proper are so altered that if the person having right to the Reversion offer surety and demand possession the Wodsetter must quite possession or else restrict himself to his annualrent and count for the superplus and that not from the Act of Parliament or Citation but from the offer of security which was not sustained at the instance of a singular successor in the right of Neversion not having produced his right to the Neversion at the requisition and though it was produced in the Process the Wodsetter was not found oblieged to restrict or cede the possession because he was in natural possession by labourage till he were warned before Whitsonday Feb. 20. 1679. Bruce contra Robert Bogie though there was a Clause in the Wodset renuncing the Usurpers Act and all such Acts made or to be made for that Exception in the Act of Parliament relateth only to preceeding Clauses thereof and not to the Clause anent Wodsets which is posterior January 29. 1662. Laird of Lamingtoun contra Sir John
Cheislie Feb. 21. 1666. Lord Borthwick contra his Wodsetters Feb. 21. 1666. Ogilvie contra 10. But where in Wodsets there is a condition of the Neversion that a Tack should be granted for years after redemption that Tack was not found taken away by the Act Debitor and Creditor but that if it were in the terms of the old Act Par. 1449. cap. 19. far within the true avail it were usurary and null February 15. 1666. Lord Lie contra Porteous February 17. 1672. Douglass of Mortoun contra and Verner In which case the Tack was sustained if it were not much within the worth of the Land as it was the time of granting the Wodset albeit it were much within the worth the time of the redemption because there is a just design in such Tacks to incourage the Wodsetter to meliorat the Wodset Lands and be at expences therefore seing he will retain the same after the Redemption for the old rent they were worth when wodset and the rent exprest in the Tack will be presumed to be the true rent unless the contrary be proven But such a Wodset granted to a Brother for his Portion wherein the Wodsetter was excluded from possession during a Liferenters life the Tack was sustained Jan. 21. 1662. Laird of Polwart contra Home 11. But if there be a Back-tack of the Land granted by the Wodsetter to the Reverser or for his behove or a Provision to count for the profites of the Land or to hold the Land at such a Rent it is an improper Wodset 12. A publick Wodset which is holden of the constituents Superior requireth beside the reversion a regress which is an obliegement upon the Superior to receive and enter the reverser his vassal again upon the redemption The necessity whereof is because by the Infeftment though of Wodset the constituent is denuded and the Superior hath a new Vassal in whose place he is not oblieged to accept any other but by his own consent Craig lib. 2. dieges 6. moveth this question Whether a publick Wodset being redeemed and the Reverser re-seased therein it would be accounted Heretage or Conquest And though it seem Conquest because it is a new Infeftment and not the old yet he well resolveth that if it return to the person or heirs of him who was first infeft if it was Heretage before it remaineth so but if an Assigney to the Reversion and Regress be insest it is truly Conquest 13. It remaineth now to consider the destitution of Wodsets and how they cease and this is either by consent or by Law by consent either when the Reversion is discharged whereby the Infeftment becomes irredeemable and ceaseth to be a Wodset which Discharge of the reversion is not effectual against singular successors unless registrat conform to the said Act of Parl. 1617. cap. 16. Or otherwayes by voluntary redemption of the Wodset which must be registrat by the said Act or else it prejudgeth no singular successor yet it is not effectual to denude the Wodsetter unless if the Wodset were base there be a resignation ad remanentiam in the reversers hands as Superiour or if it be publick that the granter of the Wodset be re-seased and a renunciation without a new Infeftment is not sufficient Hope Alienations Kinross contra Durie November 23. 1627. Dumbar contra Wilson But if the reverser or his predecessor was infeft a renunciation may exclude the renucers Right but will not establish it in the person of the Reverser but he must brook by his own right Hope Alienation Hamiltoun contra Mcaddam where Wodsets are taken holden of the Superior Regresses are also taken from the Superior and new Infeftment thereupon to the granter of the Wodset But when Neversions are carried by Assignations Apprisings or Adjudications to these who were never infeft they must not only have a renunciation from the Wodseter but a Procuratory of Resignation that thereby they may be infeft in which case the Wodset-right is not extinct but conveyed and the Wodsetter is their Author and may not resuse Procuratories of Resignation or Charters for Confirmation upon the redemption And if the wodset-lands be not ward he must grnt Precept of Seasine for infefting the reverser holden of the Wodsetter and if Infeftments follow thereupon and the Seasine be registrate there is no necessity to registrate the renunciation or grant of redemption so that a renunciation or grant of redemption being registrate excluding posterior Deeds of the Wodsetters who yet continues in the Fee and the Casuality will fall by his Death or Deeds Voluntar Redemptions are not so safe being used against Pupils and Minors whose Tutors and Curators ought to proceed Legally in Infeftments So likewise in a Wodset to a man and his wife and their heirs A voluntar Redemption by the husband was not found sufficient to to prejudge the wife who consented not July 14. and 17. 1610. Lord Cathcart contra 〈◊〉 14. Wodsets are taken off Legally when the Reversion is Legally annulled as by declarator of expyring thereof for thereby the Infeftment becomes irredeemable but is chiefly by a Legal Redemption which doth require an Order of Redemption and a declarator thereupon which must be diversly used in Legal-reversions and in Conventional-reversions 15. The Order of Redemption of Apprizings and Adjudications by vertue of the Legal Reversion is valide by Premonition and Consignation and Instruments taken thereupon wherein there is not appointed a determinat time upon which the Premonition must be made or a determinate place where the Consignation must be made nor the person of the Consignator but the premonition may be upon any number of dayes sufficient for the Consignation Yea though it were the same day of the Premonition as Craig observes But if the Creditor be personally apprehended the Consignation must be in the way most to his advantage which therefore he may prescrive being either near the place of Premonition or the Lands Wodset or the Paroch Kirk where they lie which Craig accounteth competent places or if he choose any other more advantages to the Consigner it will be sufficient But if he choose none the Premonisher must either Consign that day where he finds the Creditor or if not that day Or if he used Premonition at his dwelling-house he must Consign either at the Appryzers dwelling-house or Paroch Kirk where the Lands lye as said is if the Creditor be out of the Countrey or have no certain abode Letters of Premonition will be obtained from the Lords periculo petentis for Premonition upon sixty days at the Cross of Edinburgh and for Consignation to be made in Edinburgh Yea the Order was sustained for redemption of an Appryzing near expyring albeit the Consignation was only at Edinburgh and not at the Paroch Kirk where the Lands lay or at the debitors dwelling-house he being out of the Countrey Feb. 22. 1631. Murray contra Lord Yester But where the party was in the Countrey this Order by summonds of
Adjudications and Appryzings as they are legal Executions and of the Order and Solemnities requisite to them as such but only as they are Conveyances of real Rights wherein we shall consider first upon what ground Appryzings proceed Secondly against what Rights they are competent Thirdly what is the effect of the Process or Decreet of Appryzing without further Diligence Fourthly what is the effect thereof when further Diligence is used Fifthly what is the effect thereof when Infeftment is obtained And lastly in what manner it ceaseth and becometh extinct 14. As to the first Appryzing is an Appretiation and Judicial Vendition of the thing appryzed from the Debitor to the Creditor and as in all Venditions there must be merx and pretium or the price in numerat Money for if the mutual consist in any thing else it is not Sale but Exchange therefore the ground of Appryzing must be numerate and current Money and if originally it be not so it must be liquidat before Appryzing can proceed neither can it proceed but upon a Decreet establishing the Debt by Registration or otherways in the person of the Appryzer active and of the Debitor Passive yet an Assigney intimating before the Cedents death may Appryze summarly without Action establishing the Debt in his person as hath been shown Title Assignations Neither could Appryzing proceed upon Heretable Bonds unless the same had been made moveable by Requisition or Charge and therefore was found null proceeding upon an Heretable Sum bearing a Clause of Annualrent though payable without requisition upon a single Charge of six days seing that Charge was not given July 20. 1622. John Cranstoun contra Laird of East-nisbit Hope Obligations Alexander Mowat contra the Creditors of John Richardson John Cranstoun contra Laird of Lugtoun But Posterior Decisions have run in the contrair that if the sum were payable without Requisition Appryzing might proceed thereupon without a Charge as well as Poynding or Arrestment July 4. 1627. Edgar and Johnstoun contra Findlason July 10. 1629. Clackmannan contra Barroun In which case the principal sum was payable at a precise Term and no mention of any Term or time thereafter and yet was Appryzed for after that Term January 25. 1642. John Seatoun contra James Loch But if Infeftment have followed or Requisition be requisite the sum must be made moveable before Appryzing But other Sums though by Destination Heretable yet having Summar Execution by the parties consent Appryzing is sustained thereupon 15. As to the second point against what Rights Appryzings extend First though Letters of Appryzings contain power to poynd Moveables which must be searched for yet that which is properly called Appryzing extends to no Moveables but only to Heretable Rights as Lands Annualrents Liferents Tacks Reversions Heretable Bonds July 25. 1623. Earl of Errel contra Buckie and therefore it extends not to the Mails and Duties of the Appryzed Lands before the Appryzing Feb. 14. 1623. Saltcoats contra Home The like though the question was against the Debitor himself and that the style of the Appyzing bore all Right that the Debitor had to the Lands to be Appryzed March 13. 1627. Mackre of Balmagie contra Livingstoun And where an Annualrent is Appryzed it extends not to the bygone Annualrents which are Moveable but these being Moveable are Arrestable neither doth it extend to the Duties after Denunciation and before Appryzing Feb. 16. 1633. Harper contra Cockburn and Johnstoun Appryzing is extended to all Heretable Rights though they were not provided to Assigneys but to the Debitor and his Heirs only or failing such Heirs to return and therefore publick utility and the favour of the Creditor makes it more effectual then any voluntar Disposition or Assignation could be so an Appryzing was found to carry a Right though not granted to Assigneys Hope Appryzing John Brown contra Fssilmont of Buckie And a Husband granting Right to his Wife but with provision that she should renounce it if he required it in his own life allennerly a Creditor of his Appryzing that Land and requiring the Wife to renunce was found to have right thereto spots Appryzing Lady Huttonhal contra Cranstoun of Moristoun An Appryzing of the ground Right and Property of Lands and all other Rights c. carryeth not only the Property but all other real Right or Obliegements for granting thereof and though no Infeftment follow the Appryzing so conceived will carry any Right which requireth not Infeftment as if it had been specially Denunced and Appryzed June 19. 1635. James Rule contra Alexander Home 16. To come now to the third Point concerning the Efficacy of the Process and Decreet of Appryzing without further Diligence and first it hath the effect of an Assignation without necessity of Intimation and carries all Rights which require not Infeftments to transmit them as Liferents Reversions Tacks And so an Appryzing was found to carry the Legal of an anterior Appryzing though the Denunciation whereupon it proceeded was anterior to the Denunciation whereupon the first Appryzing proceeded and thereby at the time of the Denunciation of the second Appryzing neither was the first Appryzing in being neither the Denunciation thereof and so could not be Denunced or Appryzed yet the Denunciation of the Ground-right and all Right competent or that might be competent to the Debitor was found to carry the Reversion of the said first Appryzing Novem. 18. 1624. Doctor Kincaid contra James Halyburtoun 17. Though second Appryzings carry the legal Reversions of anterior Appryzings without Infeftment Yet Infeftment is frequently taken thereupon that the posterior Appryzer may have Interest thereby to reduce or quarrel the Anterior Appryzings and to pursue for Mails and Duties or Removing if the Anterior appryzer should forbear 18. The second effect of Appryzing is that the Debitor is thereby so far divested that after his death Infeftment may be taken by the Appryzer without transfering or Infefting the Debitors Heir Novemb. 20. 1624. Lag contra his Tennents So likewise the heir of the Appryzer dying before allowance or Infeftment upon Supplication obtained allowance from the Lords and Letters to Charge the Superiour to receive him Spots hic Alexander Frazer Supplicant The like was granted by the Appryzers Assigney March 22. 1626. Collace contra Lord Elphingstoun Yea an appryzer did obtain allowance and varrand to Charge the heir of the Superiour contained in the first allowance being dead Decem. 5. 1628. Laird of Corsbie contra Kilsyth From this ground it is that an Appryzing excludes prior assignations granted by the Debitor to the Mails and Duties of the Lands appryzed as to Terms after the appryzing Hope assignations George Meldrum contra Laird of Anstruther 19. And when an appryzing was led before an Husbands death it excluded his Wife from a Terce Hope appryzings James Chrightoun contra Relict of John Cranstoun Where he doth also observe it to exclude a subsequent Ward in respect the Superiour gave a Charter upon the appryzing in his Vassals life
though no Seasine followed thereupon Ibidem George Hamiltoun contra Tennents of Newburgh And albeit Dury observes that in the case betwixt the Lord Fleming and the Lord Balmerino dispute the 7. of March 1633. it was not decided but superceeded in hopes of agreement whether a Superiour could be compelled to receive the Minor himself till his Majority it seems the Superiour ought to receive the appryzer upon his legal diligence but prejudice of the Ward during the Minority of his former Vassal though he would not receive the Minor yet he would be necessitate to receive the appryzer and his heirs whatsomever though the Lands were Tailzied and to return to the Superiour himself 20. The third effect of appryzing is that being a legal diligence it renders the thing appryzed litigious not only from the date of the appryzing but from the date of the Denunciation So that no voluntary deed of the Debitor after the Denunciation can prejudge the appryzer if he be not in mora Thus a Tack set by the debitor after Denunciation was found null Spots appryzing Peter Blackburn contra Walter Balvaird Yet where the appryzer was negligent and obtained not Infeftment nor did diligence therefore for some years a Tack set by a Debitor before the appryzing but having its Entry after the appryzing was preferred thereto July 11. 27. Wallace contra Harvie Yea no Infeftment or diligence being used upon an appryzing for many years an arrestment thereafter was preferred to the Mails and Duties of the Landsappryzed Feb. 14. 1623. Saltcoats contra Brown But Custom since hath always preferred appryzings to arrestments although there were no Infeftment or diligence upon the appryzing because it is a legal assignation and needs no Intimation unless the appryzer had relinquished his right and therefore though that case of Saltcoats was adduced an appryzer of an annualrent was preferred to an arrestment though the appryzer neither was infeft nor used diligence for nine years before the arrestment Feb. 23. 1671. Lord Justice Clerk contra Mr. John Fairholm It is said no voluntary disposition deed of the debitor after the denunciation will prejudge the appryzing because if the deed done thereafter be necessary and that thereunto the debitor was specially oblieged before and might have been directly compelled such even after denunciation may be preferred as an annualrent proceeding upon a Bond prior to the denunciation containing an obliegemement to Infeft in that annualrent the Infeftment thereupon though after denunciation was preferred Hope appryzing Samuel Henderson contra John Mcadam The like of an Infeftment whereof the Charter was before denunciation and the 〈◊〉 before the Seasine upon the appryzing Ibid. The like of an Infeftment upon Resignation which Resignation preceeded the Denunciation and though the Resignation was at first refused by the Superiour being accepted thereafter it was preferred Ibid. Mr. Thomas Hope contra Mr. Thomas Hendrison And so an Infeftment upon a disposition for a Cause onerous Which disposition was of the same date with the denunciation and whereupon Infeftment followed before the appryzing was preferred to the appryzing Spots appryzing Mark Hamiltoun contra Brown Yea an Infeftment upon a disposition posterior to an appryzing was preferred thereto seing the Appryzer did no diligence for six years Ibid. Hamiltoun contra Mcculloch 21. In the competition of Appryzings being both legal diligences The first appyzer doing sufficient diligence is preferred as the first appryzer last Infeft but having 〈◊〉 Charged was preferred though the Superiour did voluntarly Infeft a posterior appryzer Jan. last 1632. Ferguson contra Mckenzie Yea a posterior appryzing was preferred to a prior where the debitor by Collusion suspended the Letters and denunciation of the one and not of the other whereby the other appryzed first Nov. 28. 1628. Borthwick contra Clerk The like where the prior proceeded upon a Citation of the party upon sixty days as being out of the Countrey and the debitor was brought to the Countrey of purpose that a posterior denunciation upon fifteen days by another appryzer might give him the first appryzing and yet the other was preferred Nicol. Tennents of Cockburnspeth contra Sir Hendry Wardlaw and upon the late competition betwixt the Laird of Clerkintoun pursuing a Reduction of Corsbies appryzing as collusive in so far as after his author Sir William Dick had Charged the Superiour with the first Charge upon the Letters of four Forms they gave Infeftment to Corsbie before the dayes of the first Charge were Expyred the Lords reduced the Infeftment but assoilzied him from bygones as possessing bona fide and seing the pursuer suffered him to possesse without pursuit till the legal was expyred they found that Corsbie as now the second appryzer might redeem December 3. 1664. inter eosdem 22. The fourth effect of an appryzing is that being led by the Superiour against his Vassal it needs no Infeftment but consolidats the property with the Superiority and is preferable to all posterior appryzings whatever be their diligence Spots appryzing Stevinson contra Laird of Craigmiller But in other cases appryzing without further diligence doth not transmit the real Right though it may exclude assignations to Mails and Duties or arrestments upon personal debts it is no sufficient title for Mails and Duties against any other having any real Title March 5. 1628. Andrew Scot contra Tennents of Whitesland 23. As to the fourth point concerning the efficacy of appryzings whereupon diligenceis used before Infeftment obtained They have no effect to remove Tennents though the Superiour was Charged and the Letters found orderly proceeded against him and though only proponed by the Tennents and no party pretending right March 25. 1628. Lockhart contra his Tennents But the appryzing with diligence hath this effect First it is a sufficient title for Mails and Duties against the Possessors Secondly it excludes all posterior Infeftments or Diligences by the Collusion or voluntary deed of the Superiour or any other Thirdly It is effectual to compel the Superiour to receive and Infeft the appryzer upon payment to him of a years rent which was formerly by Letters of four Forms till the Statute 1644. cap. 43. whereby one Charge upon twenty one days is sufficient all which proceeds upon the allowance of the Lords upon the back of the appryzing And albeit the Act is not revived in the late Parliament yet the Lords continue the Custome 24. This allowance of appryzings is appointed to be registrate and not the whole appryzing Par. 1641. cap. 54. yet neither the want of the allowance nor the want of Registration thereof annulleth the appryzing till the last Act of Par. 1661. cap. 31. making the Registration of the allowance necessary Otherways posterior appryzings first allowed are to be preferred unless without allowance the appryzer hath obtained Infeftment before the others Diligence upon which grounds the Lords upon Supplication without Citation ordained an appryzing to be allowed and registrate long after sixty days and after the debitors death seing it