proper Debt whichis taken off by the duply of purging the same as appears in the Decisions before adduced The said Exception is also elided by the Reply As behaving as heir albeit the same were libelled as a several passive Title March 18. 1631. Reguel Bennet contra Bennet 25. The Entry of Heirs is either of heirs general or heirs special The former requires only a general Service which is necessary to all heirs except heirs in Tacks Pensions and heirs nominatim immediately substitute in Bands But heirs of Tailzie or Provision must be served that it may appear that the heirs to whom they are substitute are failed And therefore the only Child of a Marriage was found to have no title to pursue Implement of the Contract of Marriage till he was served heir of the Marriage July 21. 1676. Hay of Drumelzier contra Earl of Tweeddale The general proceedeth thus a Brieve is taken out of the Chancery of course without Citation or Supplication for serving such a Person nearest and lawful heir to such a Defunct It may be directed to any Judge ordinar at the Parties option albeit the Defunct nor the heir never lived within that Jurisdiction March 6. 1630. the Laird of Caskiben Supplicant The Lords may in Cases where an ancient or important Service is required choose the Judge most fitting for the Affair And when Brieves pass of course they are obtained to any Judge desired But they are easily Advocat and remitted to the Macers with Assessors in cases of difficulty The tenor of the Brieve is by way of Precept from the King to the Judge To enquire per probos fideles homines patriae That such a Person died at the Faith and Peace of our Soveraign Lord And that the user of the Brieve is the nearest and lawful heir So this Brieve hath only these two heads And thus not only Heirs of Line may be served generally but also Heirs of Conquest being to Succeed to Reversions heretable Bonds or the like Rights not having an Infeftment or requiring a special Service Hope Succession Earle of Dumbar's Heirs And no doubt Heirs Male may be served generally that they may succeed to the like Rights which may be conceived in their Favour and whereunto they can have no other Access And for the same reason Heirs of a Marriage may also be served and Heirs of Provision in Bands General Services use to be included in special Services as Members thereof and a Retour to an Annual-rent bearing to be granted to Heirs whatsoever and that the persons retoured Heirs in the said Annual-rent was found to instruct him general heir though it did not bear per expressum that he was heir generally but only in that Annualrent Feb. 9. 1676. Ricartoun Drumniond contra Stirling of Airdoch The general Service of Heirs being retour'd doeth so establish Rights not having Infeftment as Dispositions Heretable Bonds Reversions Apprisings and Adjudications in the Person of the heir served as that no posterior heirs can have Right thereto unless they be served heirs to the Person last served heir though the Right stood in the name of the firstAcquirer and not of the last heir as an heretable Bond or Reversion remaining in the name of aFather to whom his eldest Son was served heir generally who dying without Issue the second Brother must be served heir to his Brother and not to his Father therein as was thought by all the Lords after dispute in praesentia albeit the matter was agreed without decision Spots Heirs Captain Peter Rollo contra Stewart of 〈◊〉 The reason is because the general Service is a compleatestablishing of the Right in the Person of the heir and therefore as in special Services the heir is served to him who died last vest and seised as ofFee whereby that Right is established so in the general Service the heir must be served to him in whose Person the Right stood last And though in special Services the heir cannot be served to him who is last served special heir unless he had been also Infeft the reason thereof is because the special Service as an incompleat Right evanisheth and the next apparant heir must be served again to the same Defunct but it is not so in general Services 26. The Entry of Heirs to Lands or Annualrents the Fee whereof is by Infeftment is either by consent of the Superior voluntarly or by Law The former is by the Superiors Precept which from the initial words thereof Quia mihi clare constat c. is called a Precept of Clare constat by which the Superior acknowledgeth that the Defunct died last vest and seised in such Lands or Annualrents and that the same are holden of him by such a Tenor and that the obtainer of the Precept is nearest and lawful Heir to him in the said Lands c. and that he is of lawful Age for entering thereto And therefore commands his Bailiff to Infeft him therein Infeftment being past accordingly giveth that Party the real Right of Lands or Annualrents if done by the light Superior It doeth also constitute the receiver thereof Heir passivè and makes him lyable to his Predecessors Debts but it will not constitute or instruct him Heir activè or give him an active Title to pursue as Heir Yea it will not be a sufficient title as to the real Right of the Ground against any other Party than those who acknowledge the Giver thereof to be Superior and the Receiver to be Heir For if upon any other colourable Title they question any of these the Infeftment and precept of Clare Constat will not be sufficient alone unless it have obtained the benefit of a Possessory Judgment or Prescription 27. Like unto this is the entry of Heirs within Burgh Royal by Hespand Staple according to the Custom of Burgh which is instructed by the Instrument of Seasing only without other adminicles November 13. 1623. Mershall contra Mershal July penult 1629. Wilson contra Stewart In which case though a Seasing by Hesp and Staple was sustained to instruct an Heir activè yet it was only because this pursuer had been proven Heir passivè the eby at the instance of that Defender 28. The securest Entry of Heirs specially in Lands or Annalrents is by Law The procedor whereof is in this manner Any Person may summarely 〈◊〉 a Brieve out of the Chancerie in the same manner as the general 〈◊〉 which is directed by way of Precept from the King or Lord of the Regality having Chapel and Chancelarie whereby the Judge to whom it is directed is ordained by an Inquest upon oath to enquire Who died last Vest and Seized as of Fee in such Lands or Annualrents And if at the Faith and Peace of our Soveraign Lord and Who is his nearest and lawful Heir therein Of whom it is holden in Chief By what Service and What the Value of it is now and in time of Peace And if the said Heir be of lawful Age In
they be done before year and day expire being after the Rebellion And so Arrestments or Assignations even though before Rebellion have no effect after year and day is run because these being but Personal and Liferent-escheat a reall Right flowing from the Superiority whereby the Vassal is denuded of the Liferent Therefore the effect of these Personal rights ceaseth But all reall rights flowing from the Vassal before the Rebellion as Fews Annualrents Tacks Appryzings and Adjudications whereupon there was a Charge are effectual and not excluded by Liferent-escheat though these are excluded by Ward which is a Casuality following the nature of Fewdal Rights Whereas Liferent-escheat ariseth not from the Nature of Fies but is introduced by Law or Custom and therefore the Fie falls in the hands of the Superior as it was in the hands of the Vassal with all the Real burdens he had fixed upon it Neither does Posterior voluntary Infeftments though for debts prior to the Rebellion and granted before Declarator exclude the Liferent-escheat Jannuary 18. 1611. Samuel Ord contra the Laird of Craigkeith The like where the Infeftment was granted after Rebellion but within year and day January 23. 1627. James Wallace contra Thomas Porteous Where there is an exception insinuat unless there had been an prior obliegment before the Rebellion to grant thelnfeftment as if in that case though in cursu Rebellionis it would be sufficient to exclude the Liferent The like was found that Infeftments upon a voluntary Disposition made in cursu Rebellionis within the year and for a debt due before Rebellion excluded not the Liferent-escheat March 19. 1628. Mr James Rae contra Buckie Hope Horning Laird of Frendraught contra Meldrum Gordon of 〈◊〉 contra Gordon of Haddo But Infeftments in cursu Rebellionis upon special obliegments to grant the same before Denuneiation are valid vide Tit. 14. § 53. As to Legal Diligences of Creditors whither Appryzing and Infeftment thereupon being after Rebellion will exclude the Liferent-escheat was declared the last Title in the second effect of Appryzings the sum whereof is that they are thus far preferablé to voluntary Dispositions That being done in Cursu Rebellionis for a debt before Rebellion There being Infeftment or Charge in cursu Rebellionis they exclude the Liferent Secondly Single-escheats require general and special Declarator Liferent-escheats require but one Declarator for all wherein the Title is the Horning the Gift and the Superiors Seasine without farder instructing the Superiors Right and without Continuation July 2. 1622. Carmichael contra Lermont March 6. 1624. Dowglas contra Eastnesbit June 23. 1625. Viscount of Stormont contra And there is no necessity to instruct the Lands holden of that Superior by the Defender The reason is because that is presumed unless the Defender disclame or that the Superior be a Singlar Successor never acknowledged by the Vassal or his Predecessors 27. Shipwrack and Wath Goods or Treasures in the ground whose owner appeareth not are Confiscat as Caduciarie whereby the owners are presumed to Relinquish or loose the same And so a jure sup cadunt and the things become nullius and yet belong not to the first Possessor as things relinquished do by the Common Law but do belong to the King by his Royal Prerogative or to others having Right from him We have spoken of these before in the Title Real Rights And shall only add this that by that just and Noble Statute Par. 1429. cap. 124. It is declared that where Ships break in this Countrey the Ship and Goods shall be escheat to the King if they belong to such Countries as use the like Law anent Ship-wrack in there own Land otherwayes they shall have the same favour as they keep to Ships of this Land broken with them It is also declared amongst the Statutes of King Alexander the Second cap. 25. That if any Living Man or Beast as Dog Cat c. come quick out of the Vessel the same shall not be accounted Ship-wrack but shall be preserved to the Owner claming and instructing his Right within year and day Or otherwayes it shall belong to the King So was it found where an ox escaped alive out of the Ship and the Admirals Decreet finding the same Escheatable as Shipwrack was Suspended Simpliciter December 12. 1622. Hamilton contra Cochran In which case nothing was alleiged but this old Statute the genuine meaning whereof seems only to be where any person came to Land the Ship and Goods should not be confiscat as Wrack but the posterior Act Par. 1429. cap. 124. Repeats not that provision but regulats the matter according to the custom of other Nations to do to them as they do to us without any other Limitation And therefore where some Persons came to Land the Ship being broken the same with the Goods dispersed were Confiscat If Confiscation in the like case should be proven to be the Law or Custom of that place to which the Ship belonged January 20. 1674. Jacobson contra Earl of Crawfoord 28. Forefaulture is the great Confiscation comprehending all other Penal Confiscations It is extended to the taking away of Life Lands and Goods Par. 1424. cap. 3. For it is the Penaltie of the highest Crime to wit Treason which at first and by its native Signification it expresseth Crymes against the Life of any partie under Trust So the Slaughter of any person under Trust Credit or power of the Slayer is declared Treason Par. 1587. cap. 51. 29. Thence it is also called Treachery and the Committers thereof Traitors And because of that Trust betwixt the King and all the Leiges as their Superiour and Soveraign The chief point of Treason is against the Kings Person as appeareth by the Act last Cited These also who without cause wilfully raise a fray in the Kings Host commit Treason Par. 1455. cap. 54. Upon the same ground because of the Trust betwixt the Superiour and his Vassal such Crimes against the Superiour is also called Treason and thereby the committer Looseth for ever all Lands and Heritage he held of that Sùperiour quoniam Atachiamenta cap. 19. But this Treason infers not a Simple Forfaulture but only is a ground of Recognition But as now the Terms are take Treason and Forefalture of Life Lands and Goods are adequat and wherever the one is exprest in any Act of Parliament the other is understood for the Stryking or Slaying of any person within the Parliament House during the time of Parliament within the Kings Inner-Chamber Cabinet or Chamber of Peace the King being within his Palace or within the Inner-tolbooth the time of Session sitting or within the Privy Council-House the time of the Council sitting or in his Majesties Presence any where is declared Treason Par. 1593. cap. 173. Impugning the Dignity or Authority of the three Estates of Parliament or procuring any Innovation or Diminution of there Power is prohibit under pain of Treason Par. 1584. cap. 139. And also declyning the King and
whose hands the same now is From what time How By what Service By whom and through what cause It is needless to be Curious concerning the number of the heads of this Brieve some parts thereof not being distinct but explicatory of the former 29. These Brieves are accordingly direct to the Judges ordinary where the Land or Annualrent lyes as to Sheriffs Bailiffs of Royaltie or Regality or Bailiffs of Burghs-royal But if there be just exception against the Judge ordinary of the place or if the Lands or Annualrents lye in divers Jurisdictions and so be represented Warrand will be granted upon Supplication to the Lords that the Director of the Chancerie issue Brieves to other Persons and frequently in the case of diverse Jurisdictions they are directed to the Macers 30. By Vertue of this Brieve the Judge ordinary or Delegat to whom they are direct citeth Persons to be members of inquest upon 15. dayes And 〈◊〉 the Brieves at they Mercat Cross unless they be Served at the 〈◊〉 Court when all the Free-holders are oblieged to be present and then the Brieve may be served without further delay conform to the Act of Parliament 1429. cap. 27. and Par. 1503. cap. 94. where it is left arbitrary to summon the Inquest on what dayes the Judge server of the Brieve pleaseth or presently if they be Persons of Inquest present in the Tolbooth un-summoned But in all cases the Brieves must be proclaimed publickly at the Market Cross in plain Market where most confluence of people is gathered so as it may come to the knowledge of the partie before whom it should be served And then that the said Brieve be thrice cryed plainly together which is by three several Oyesses with a loud and audible Voice before the reading of the Brieve and the Sheriffs Precept thereupon and each Oyes to be at as great distance from other as the time required to give the said Oyes thrice and that the Officers of the Town be present But if the Brieve come to be served so near Whitsunday or Martinmass that there does not intervene a Market day the Brieves may be proclaimed upon any week day the Officers and six others of the Town being present Yet either the day of Compearance or the day of Citation is numbered as one of the fifteen July 27. 1626. Mackculluch contra Mackculloch There is no necessity to Summon any Defender in lieu whereof is the publication of the Brieve by Proclamation at the Market Cross. Yet upon the Supplication of the partie interessed Warrant was granted by the Lords to the Director of the Chancerie that no Brieves should be issued for serving Heirs to such a Defunct unless they contained a Clause to cite the Supplicant who was Donatar to the Defunct's Bastardrie Spots de haereditarijs actionibus Mackculloch contra Laird of Martoun 31. The Inquest being called consisteth ordainarly of 15. Persons against whom like Exceptions are competent as against Witnesses And though Craig lib. 2. dieg 17. regrateth that any person is admitted to be one of the Inquest whose Rent exceedeth not 40. lib. though they be not pares curiae nor Con-vassalls with the partie to be served neither of the vicinity or Neighbour-hood contrary to the Intent and Ancient Custom of these Services Yet he acknowledgeth that it was so ordainarly especially in the Service of Noblemen and Custom hath containued the same hitherto But those of the Neighbour-hood were fittest because as Craig observeth in that place Inquests are in the middle betwixt Judges and Witnesses partaking part of them both for two or more of them of their proper Knowledge will be sufficient for Witnesses in the matter of fact and upon their declaration all the rest will Serve affirmativè without any other Testimony And it is like they have been of old sole Judges in Brieves the Judge ordinary having no more power but to call and order them And they are yet with the Judge ordinary or Delegat as Judges for they must serve and do sometimes seal the Service with him 32. The Inquest being settled the Heir apparant gives in his Claim craving to be served Heir to his Predecessor in such Lands or Annualrents and therewith the Brieve and Executions thereof together with the instructions of the same 33. The Brieve and Claim are as a Libel against which any partie compearing and found to have Interest may propone their Exceptions which are many more than those contained in the said last Act of Par. 1503. cap. 94. And first against the Executions as being blotted in the date or other Substantials and so null which thereby may not be mended as other Executions as the Name and Sir-name of the Followers and of the Defender the name of the Land and Cause upon which the Brieve was purchased Which was found not only to extend to the blotting of the Brieve but to the Executions thereof July 27. 1623. Mackculloch contra Martoun Or as not proclaimed upon fifeen days which also will be relevant by way of Reduction Or that the Defunct was Bastard and had no lawful Issue Or that the pursuer of the Brieve is Bastard and so incapable of Succession wherein if the proponer be more special and pregnant than the apparant Heir in his alledgence of being nearest and lawful Heir he will be preferred Exceptions also are Competent as to the point of Right by proponing and instructing that the Defunct was denuded of the Fee but Exceptions upon paralel Rights that the Defunct had not a good Right are not competent here And also Exceptions upon the age of the apparent Heir or his being forefault or Rebel c. are here competent and likewise Objections and Debates upon Instructions and Writs adduced for proving of the Claim and Head of the Brieve In which cases if there appear difficultie or intricacie the Lords upon supplication will constitute Assessors or grant Advocation of the Service and after discussing of the points in jure will remit the same either to the same or to other Judges delegat But no Objection or Exception will be admitted unless it be instantly verified because this Brieve is no Brieve of Plea Par. 1503. cap. 94. and therefore cannot admit of terms to prove Exceptions 34. The Debates upon the Brieve being discussed the Pursuer thereof must prove and instruct sufficiently the Heads of the same As first that the Defunct died last vest and seised as of Fee at the faith and peace of our Soveraign Lord which comprehends first the Death of the Defunct which is ordainarly proven by the Knowledge of the members Notorietie or common Fame without necessity to instruct the same by ocular Witnesses who saw the Defnnct die or buried But in case of the Defunct's Death out of the Countrey or if it be dubious or controverse the testimony of Witnesses or proper knowledge of two at least of the Inquest or Testificats from abroad especially from the Magistrats of the Place where the Defunct died
or was buried are requisite or common Fame as to Persons who perish or are killed The second poynt of this Head is that the Defunct died last vest and Seised as ofFee which must be instructed by production of theInfeftment specially the Instfrument of Seising and warrant thereof or ground of the same For though in antiquis the very Precept cannot be shown yet the Charter or Disposition will be a sufficientAdminicle to corroberat thisSeising that it be not accounted only as the assertion of a Natar Yea there is no doubt but since the Act of Prescription consequent Seisings having the Course of fourtie Years may instruct this point being sufficient even in the case of Competition which is much exacter than this And Spotswood observeth upon Retours that in Anno 1547. a negativeService was reduced upon production of a Transumpt of theDefuncts Seising out of a Protocol transumed before a Comissar with a Decreet against the Superior bearing to have confessed that he had infeft the Defunct But here the instructing the Defunct's being once infeft will infer a Presumption that he so continued and so died Infeft unless the contrary be proven that he was denuded The third poynt in this Head That the Defunct died at the Faith and peace of our Soveraign Lord is also presumed quia quod inesse debet 〈◊〉 And therefore needs no other Probation but layeth the burthen of Probation upon theAlledger in the contrary viz. That the Defunct died Rebel or that he was Forfaulted or his Blood attiainted which may be elided by the Replyes of Relaxation Dispensation or Restitution But there useth small notice to be taken of Rebellion upon civil Debts but only open Rebellion of War or upon Treasonable Causes whereupon the Defunct was declared Fugitve which makes the Defunct as to this poynt not to die at the Faith of our Soveraing Lord. November 21. 1626. Seatoun Supplicant 35. The second Head of the Brieve is That the Pursuer is nearest and lawful Heir to the Defunct in these Lands Which resolveth in two points First that the Fee was provided to such Heirs as are contained in the Claim whether they be Heirs of Line or of Conquest Heirs Portioners Heirs of Marriage Heirs Male or of Tailzie and Provision And this can only be instructed by the Defunct's Infeftment and other ancient Evidents where in dutio the Presumption is always for the Heir of Line So that if it be not sufficiently instructed that the Fee was provided to special Heirs it will belong to the Heirs general of Lyne or Conquest according to Law as if it be instructed by three consequent Seisings which ordinarly do not express the the several Kinds of Heirs The other point of this Head is That the Pursuer of the Brieve is nearest lawful Heir which sometimes also is instructed by the Infeftment As when the Person to be served is a Member of Tailzie nominat as if the Infeftment bear Land or Annualrents to be granted to the Feer and to the Heirs of his Bodie which failling to George his Brother c. George pursuing a special Service needs no further instruction because That he is George the Defuncts Brother passeth without probation as Notorium But ordinarly the Propinquity of Blood must be proven to the Feer who died last infeft or to some member of Tailzie substitute For proving whereof the Relation must be particularly condescended on according to the Line of Succession mentioned in the former Title as that the Pursuer is the Defunct's eldest Son or the eldest lawful Son of that Son or that they are the Daughters of that Son c. or the lawful Daughters of the Defunct c. And it will not be sufficient to instruct or serve the Pursuer nearest lawful Heir without condescending Here also the propinquity of Blood being condescended on and proven it is sufficient in whatsoever Degree can be proven though it were beyond the tenthDegree Yea any Degree being presumed to be the nearest Degree unless a nearer Degree be instructed for it resolves in this Negative that there is no other nearer Degree which as other Negatives proves it self And that thePursuer is not only nearest Heir according to Lineal Succession by Course of Law but that he nor none of the Intervenient Blood were Bastards or unlawful Children which is instructed sufficiently by common Fame or being so holden and repute in the Intermediates it will be sufficient that nothing is known to the Inquest on the contrary unless Bastardrie be on the other part alledged and instructed This propinquity of Blood is proven either by Writ or by Retours Infeftments or Designations or Acknowledgments of the Feer for the time bearing such a Person to be of such a Degree or Relation to him And in antiquis Writs bearing such Designation and Acknowledgment even by others of Fame will be sufficient For there is not equal evidence of Fame required in all Cases And therefore when the Fee is to fall Caduciarie and to cease from the Feer's proper Blood lesse probation will serve than when the Competition is betwixt divers Persons of the same Blood or at least members of the same Tailzie amongst whom the pregnantest probation will take place So the Service and Retour of the Earl of Airth then designed Earl of Strathern was reduced because the propinquity of Blood not sufficiently instructed which could not be known by the Inquest or was Witnesses the progresse thereof being far past memory of man and Hear-say or common Fame was not found sufficient Neither were the Writs produced sufficient to prove the said Earls Propinquity of Blood to David Earl of Strathern Son to King Robert the second or to Eupham only Daughter to the said David and Patrick Graham her Spouse which progress not being sufficiently instructed the Right remained with the King as the unquestionable Descendent of the said King Robert the third and so Heir of his Brother the said David Earl of Strathern So that no other lawful Issue being proven of the said David's own Bodie nor of any other nearer Brother all his Right remained with the King as descending from King Robert the third who was Brother to the said David Earl of Strathern March 22 1633. The King contra the Earl of Strathern There is another Exception against this Head That the pursuer hath slain his Father Mother Good-sire Grandsire c. whereby he and all his Issue are excluded from the Heritage of the Partie slain if he be convict thereof by an Assyse and the next Agnat may be served Par. 1594. cap. 220. Which was not sustained where the Slayer was only declared Eugitive for not appearing to underly the Law in a Dittay for Slaying his Mother Feb. 3. 1674. Mr. George Oliphant contra Oliphant 36. The third Head of the Brieve is Of whom the Fee is holden in Chief or who is immediat lawful Superior thereof and this also be instructed by the Infeftments whereby the Giver of the
last Infeftment will also be presumed to continue Superior and the Inquest will serve accordingly unless another Superior be instructed or acknowledged by the Pursuer Which acknowledgment in respect of the Pursuer's hazard of Disclamation and that the subsequent Superior's Rights are in his own hand and he cannot be prejudged by the Service therefore that poynt will be so served Periculo petentis 37. The fourth Head of the Brieve is By what Service the Fee is holden whether it be Ward Blench Feu or Burgage which also must be instructed by the Evidents And if nothing else appear the Fee is presumed to be Ward because that only is the proper Fee and the others are improper declyning from the nature of Fees and therefore are not presumed but must be proven And as Craig observes lib. 2. dieg 17. It will not instruct the Fee not to be Ward though it contain a particular Reddendo of a Cane or Dutie yea though it bear pro omni alio servitio questione seculari unless it express the said Reddendo to be in name of Blench Dutie or in name of FeuDutie So an Infeftment bearing a particular Duty payable at Whitsunday and Martinmass yearly cum servitiis in curiis nostris debitis consuetis was found to be a Ward Holding Hope de Feudi Renovatione Williamson contra Thomson And an Infeftment bearing sex denarios nomine canae with a Taxed Marriage was found Ward Feb. 7. 1610. As was resolved by Oliphant the King's Advocat in a Consultation with the Bishop of St. Andrews for entring the Lord Lindsay to the Lands of Struthers 38. The fifth Head is The Value of the Fee now and in time of peace The reason of inserting of this Article is because there is due to the Superior a years Rent of the Fee for the entire of the Heir which is called the Relief of which formerly Title Superiority And that it might be constant and liquidat there was a general Valuation of the whole Kingdom which is called the old Retour or old Extent Thereafter there was a second Retour called the new Retour or Extent whereby the new Retour of some Shires was made the Triple and some the Quadruple of the old Yea different new Retours were in the same Shyre but there is no new Retours in Southern Shires upon the Border which were frequently wasted with War and little addition in the Northern Shyres So the meaning of the Article is what the Fee is worth now that is what the new Retour or Extent thereof is and what it was worth in the time of Peace or what is the old Extent thereof Craig declares he could never find clear satisfaction in the reason of these expressions especially why the old Retour is called that which was in the time of Peace And he conjectureth that because our fore Fathers are said to rest in peace therefore by the same peace is meant the time of our Predecessors But I conceive the matter may be better cleared thus The Casualities of the Superiority were of old the Chief Patrimony of the Crown of Scotland and were further extended than of late and therefore it seems that the time of the making the new Retour and cause thereof was the frequency of War requiring an Addition of the Royal Revenue And though through the alteration of the Rate of Money neither of the Retours be now considerable Yet doubtlesse they were very considerable in those times So that by quid valet nunc is to be understood in time of War at which time the new Retour was made which is the more evident by the opposite member what was the Value in the time of Peace So that the old Retour being that Value which was before the necessity of heightening thereof by the War is fitly said to be that which was in time of Peace and the new Retour that which was made in time of War And immediately after the Constitution thereof the Brieve was made to expresse it by the then present time Nunc which hath been always so continued because the Style of Brievs is not to be altered This is the more evident that the Bordering Shyres which were frequently wasted by Incursions were not altered in their Extent So that it hath been made in a time of War The new Extent is not only the Rule of Relief but of Non-Entrie in Lands holden Ward and Blench for the new Retour Mail is only due till general Declarator But in Feu Lands there is only regard to the Extent for during the Non-Entry thereof at least before general Declarator nothing is due but the Feu Dutie and the Duplication thereof for the Relief Annualrents have no difference before or after Declarator and therefore are alwayes Retoured to the full Value of the Annualrent and is thus exprest quod valet seipsum 39. The sixth Head is Whether the Pursuer be of lawful age Wherein we must distinguish betwixt Ward Holdings and other Holdings Blench Feu or Burgage For in these any Age is lawful Age. but in Ward Holdings because the Superior by vertue of the Ward hath the profit of the Land during the Heirs Minority therefore they cannot enter till their Majority at which time only the Heir is of lawful Age which in Men is twenty one Years compleat and in Women fourteen Years compleat January 27. 1610. Laird of Kilbirnie contra Fairly Yet if the King or any other Superior give Dispensation of the Age the Service will proceed but the benefit of the Ward continueth with the Superior by the Dispensation in the Disposition The Heir Age must also be instructed to the Inquest either as being Notour by inspection of the Persons for it would be Ridiculous to prove a Gray-headed Heir to be Major but in dubio Witnesses or other sufficient Adminicles must be adhibited 40. The seventh Head of the Brieve is In whose hand the Fee is that is to whom the profit and benefit thereof doth now belong For ordinarly the Fee is Retoured to be in the hands of the Superior by reason of Non-Entrie but sometimes retoured to be in the hands of the Supeiors Superior when the Sùperior hath lost the Casualities of the Superioritie during his Life and sometimes it is in the hands of the Liferenters by Conjunct-Fee or Liferent holden of the Superior which doth not hinder the Entrie of the Heir to the Fee yet excludeth Non-Entrie The remanent Particles of the Brieve From what time how by what Service by whom and through what Cause are but circumstances relative to the last Head that thereby it may appear First How long the Fee hath been in Non-Entry or in the hands of the immediat Superior or Liferenter 2. How it came to be in that Condition So it became in Non-Entrie by the Vassal's Death and in the hands of the mediat Superior by the contumacie of the immediat Superior in not entring his Vassal and in the hands of the Liferenter
by the Infeftment of Liferent granted by the Superior 3. The kind of Service which relateth to the Fee's being in the hands of the Liferenter in respect that the Liferent is oftimes a different Holding from the Fee and is ordinarly Blench and therefore it is the Superiors Interest to know what such Service is and also to know by whom and through what Cause the Fee is in the hands of such a Person These Circumstances therefore do not make distinct Heads of the Brieve and are not al ways necessary to be retoured as the former Heads be 41. The points aforesaid being cleared and instructed to the Inquest the Service is the Sentence or Decreet which ought to be sealed with their Seals and with the Seal of the Judge to whom the Brieve is directed and is returned to the Chancerie whence it is called a Retour being Registrate there and Extracted till which it is not compleat neither doth the Service ordinarly instruct the active Title but only the Retour The Service is keeped in the Chancery for Warrant of the Retour Yet it was found that Services before the year 1550. were sufficient to satisfie the Production in Improbations or Reductions without producing the Retour it self because at that time the Books of the Chancerie were destroyed by War Feb. 17. 1624. Lord Elphinstoun contra Earl of Marr. 42. Retours are easily annualled or reduced because no Desender is called thereto and the Probation in most part is by presumption as hath been shown and by the proper Knowledge of the Inquest or Witnesses whereof there seldom remaineth any Testimony in retentis The Lords would not reduce a Retour for want thereof But ordained the whole Inquest to be examined upon oath upon what Evidence they served Feb. 24. 1665. Sr. James Mercer of Aldie contra William Rowen A Retour being found null in one Head was found null in otum Hope 〈◊〉 Laird of 〈◊〉 contra A Retour of a Sister as Heir to her Brother was found null by Exception upon production of another Brother's Retour though posterior who thereupon was preferred albeit an excommunicat Papist Feb. 16. 1627. Lord Colvil contra Mr. Walter and Christian Herds And a Retour of a second Brother served Heir to his Father where the elder Brother was absent and repute dead but returning home again and granting Band to a Creditor who charged him to enter Heir and apprised and possessed the Retour of the second Brother was thereupon found null by Exception albeit twenty Years after the Date thereof though by the Act of Patliament 1617. cap. 13. Retours are not quarrellable by Reduction or Summonts of Error unless the same be intented execute and pursued within twenty Years after the Service and Retour in respect of the Apprising and Possession within these Years which import an interruption and that the second Brother's Retour was null by Exception and needed no Reduction January 11. 1673. Lamb contra Anderson A Retour was also annulled by Exception by referring to the Parties oath that he had no contingencie of Blood with the Defunct Feb. 10. 1636. Murray contra Sinclair and Meikle The like in the case of a Woman retoured sole Heir it being instantly verified that there was another Sister Hope Retour of Idiotrie Fairly contra Fairly The like was found by Reply referring it to the Partie's Oath that he was Bastard Spots Retours Murray contra Murray 43. Retours are ordinarly annulled and reduced by a great Inquest of twenty five Members who do enquire not only concerning the Verity and 〈◊〉 of the Retour but also concerning the Ignorance and Malice of the Jurantes super assisa which is not always inferred when the Retour is reduced As if it be found that the Defunct died not last vest and Seased as of Fee by instructing that he was denuded July 7. 1663. Isabel Mow contra Dutchess of Buccleugh Or that he died not at the Faith and Peace of Our Soveraign Lord by instructing that he was forefault or that he was not nearest and lawful Heir by instructing a nearer Heir is no Error in the first Inquest seing these points were presumed and needed no probation And in like manner if by Reduction there be a more pregnant Condescendence and Probation for another Partie than for the Heir served it will be no wilful Error unless competition had been at the time of the Service But it must be an evident and grosse Error in the positive Probation specially concerning the Death of the Defunct and his being once infeft the special Relation and Degree of Blood of the Heir his Age and the Extent of the Fee which though the poynt of least moment yet will annull the Retour But if there be a probable cause for the Inquest as by production of Writs containing wrong Extents they will be declared free of wilfull Error Spots Retours Mark Kerr contra Scot of Hartwoodmires The manner of reducing of Retours is by a Summons of Error against the Assysors before the Kings Council which is now the Lords of Council and Session Par. 1471. cap. 47. 44. Though it be the ordinary way to annull Retours by a great Inquest yet the Lords do sometimes sustain Reductions thereof as erronious by Witnesses before themselves without a great Inquest July 7. 1663. Isabel Mow contra Dutchess of Buccleugh 45. The Reduction of Retours being of such hazard to the members of Inquest it is statute Par. 1494. cap. 57. That they shall not be reducible but within three years after the Date so as to inter Error against the Inquest albeit they may be reduced as to render the Retours null in themselves at any time within twenty Years after they were deduced Par. 1617. cap. 13. Which Act reacheth only Retours after it but not Retours before and actions against the same which Prescrive by the general Act of Prescription Par. 1617. cap. 12. As was found November 28. 1665. Younger contra Johnstoun 46. The Heir being thus specially served and retoured if the Fee immemediatly hold of the King he doeth thereupon obtain Precepts out of the Chancery of course without Citation commanding the Judge ordinary of the Place where the Feelyes Sheriff or Balliff to give Seasine to the Person retoured capiendo securitatem taking Security for the Non-Entry and Relief due to the King for which the Judge ordinary is countable in Exchequer unless the Profites belong to himself as Bailiff of Regality If the said Judge ordinary do not grant Seasine accordingly the Lords upon Supplication and Instruments of his disobedience will grant Warrant to the Director of the Chancery to issue Precepts to an other Person as Sheriff in that part specially constiture without first using Horning against the Ordinary disobeying Spots David Balfour Supplicant These Precepts because of the Clause capiendo securitatem were found to make both the person of the Heir and the Ground lyable for the Sums due thereby though Infeftment was never