Tit. I. Of Laws in General.

JUSTICE, is a constant and perpetual Will, and Inclina­tion to give every Man what is due to him.

LAW, is the Science which teacheth us to do Justice.

This Law, in a large ac­ceptation, is divided, In the Law of Nature, Law of Nations, and the Civil, and Municipal Law of each particular Coun­trie.

[Page 2]The Law of Nature compre­hends those Dictats, which Na­ture hath taught all living cre­atures, instances whereof are Self Defence, Education of Chil­dren: and generally, all those common principles, which are common to Man, and beasts, and this is rather innate instinct, than positive Law.

The Law of Nations, is pecu­liar to Man-kind onely, dictated by right Reason, and is divi­ded into the Original and pri­marie Law of Nature, that flows from the first and purest prin­ciples of right Reason; Such as Reverence to GOD, respect to our Country, and Parents. And the secundarie, and conse­quential Law of Nature, consisting of these general conclusions, in which ordinarly all Nations agree, and which they draw [Page 3] by way of necessary conse­quence, from those first prin­ciples. And under this part of the Law of Nations, are com­prehended, the Obligations a­rising from promises, or contracts, The liberties of Commerce, the ransoming of Prisoners, securitie of Ambassadours, and the like.

Civil, or Municipal Law, are the particular Laws, and Customes of every Nation, or people, who are under one Soveraign Power.

The Romans, having studied with great exactness, the prin­ciples of Equity, and Iustice. Their Emperour Iustinian, did cause digest all their Laws in­to one body, which is nowcal­led by most polit Nations, (for its Excellency) the Civil Law; And as this Civil Law is much respected generally, so it has great influence in Scotland, ex­cept [Page 4] where Our own express Laws, or Customes, have receded from K. J. 6 Par. 8. Act [...]31 it. And by the com­mon Law in our Acts of Par­liament is meant the K. Ja. 4. Par. 4. Act 51. K. Jam. 5. Par. 6 Act 80. [...]. Mary Par. 5. Act 22. K, Ja. 6 Par. 1. Act 31. Civil Law.

The Popes of Rome, in Imi­tation of the Civil Law, made a body of Law, of their own; which, because it was com­piled by Church men, it was called, The Cannon Law; And though it has here no positive Authoritie, as being compiled by private Persons, at the de­sire of the Popes, especially since the Reformation; yet our Ecclesiastick Rights, were settled thereby before the Reformation: And because many things in that Law, were founded upon material justice, and exactlie calculated for all Church men; Therefore, that Law is yet [Page 5] much respected among us, E­specially in what relates to conscience, and Ecclesiastick Rights.

Our Municipal Law of Scot­land, is made up partly of our written, and partly of our un­written Law: Our written Law comprehends, first, our Statutory Law, which consists of our Statutes, or Acts of Parliament. Secundo, The Acts of Sederunt, which are Statutes, made by the Lords of Session, by vertue of a particular Act of Parliament, K. Ja. 5. Par 7 Act 93. impowering them, to make such constitutions as they shall think fit, for ordering the [...]rocedur, and forms of Admini­ [...]trating justice, and these are called Acts of Sederunt; because they are made by the Lords sitting in judgement; But are not properly Laws, the legislative power being the [Page 6] Kings Prerogative. Tertio, The books of Regiam Majestatem, which are generally looked u­pon as a part of Our Law, and they, and the leges burgorum, and the other tractates, joyned by Skeen to them, are called the old books of Our Law, by many express Acts of Parlia­ment K. Ja. 1 par. 3. Act 54. K. Ja. 3. Par. 14. Act 115. Tho the books of Regiam Majestatem, were origi­nally but the works of one private Lawyer, writing by way of Institution, and are now very much abrogated by Custome.

Our unwritten Law, compre­hends the constant tract of de­cisions, past by the Lords of Session, which is considered as Law; the Lords respecting very much their own decisions; And though they may, yet they use not to reced from them, [Page 7] except upon grave considera­tions. Secundo, Our Ancient customes, make up a part of our unwritten Law, which have been universally received a­mong us. The tacite consent of the people, operating as much in these, as their express con­sent does, in making Laws; And such is the force of custome, or consuetude, that if a Statute, after long standing has never been in observance, or having been, has run in desuetu [...]e; con­suetude prevails over the st [...]e, till it be renewed either by a succeeding Parliament, or by a Proclamation from the Council: For though the Council cannot make Laws, yet they may revive them.

Generally, all Laws should look foreward K. Ja. 6 par. 3. Act 18. though declaratory Laws regu­lat what is past, since their de­sign [Page 8] is, to declare what was Law prior to the statute, and to direct Iudges, how to decide in cases that needed the decision of a Parliament.

Laws should command, not perswade; and though the rubrick (or title) and narrative of the statute, may direct a doubting Iudge, yet if the statu­tory words be clear, they should be followed in all cases.

All Laws should be so inter­preted as to evite absurdities; and as may best agree with the mind of the legislator, and Analogie, or general design of the common Law.

Correctory Laws (so we call these which abrogate, or restrict former Laws) are to be strictly interpreted, for we should reced as little as can be from received Laws.

[Page 9]Honourable Laws are to be extended, and the Paritie of Reason, often prevails with our Judges, to extend Laws to Cases, that are founded on the same reason, with what is expresly determined by the Statute.

Tit. II. Of Iurisdiction, and Iudges in General.

HAving resolved to fol­low Iustinians method, (to the end, there may be as little difference found, betwixt the Civil Law, and Ours, as is possible: And that the Reader may not be distra­cted, by different methods) I do resolve, first, to lay down what concerns the Persons of [Page 10] whom the Law treats: [...]at [...]do, what concerns the things them­selves treated of, such as rights, obligations, &c. Tertio, The actions whereby these rights are pursued, which answers to the Civilians, objecta juris, viz. Personae, res, & Actiones.

The Persons treated of in Law, are either Civil or Eccle­siastick, the chief of both which are Iudges, with whom we shall begin. And for the bet­ter understanding of their Of­fice, it is fit to know, that Iurisdiction, is a power granted to a Magistrate, to cognosce u­pon, and determine in causes, and to put the sentence or de­creet to execution, in such ma­ner as either his commission, law, or practice does allow.

All Iurisdiction flows origi­nally from the King K. Ch. 2. Par. 1 Act. 2. Par. 3. Act 18. so that [Page 11] none have power to make De­puts, except it be containd in their commission; And if a De­pute, appoint any under him, that sub-depute is called proper­ly a substitute; and every Iudge is answerable for the Malversa­tion of his depute.

Iurisdiction is either Cumula­tive, or Privative; Cumulative jurisdiction, is when two Judges, have power to judge the same thing; And generally, it is to be remembred, that the King is never so denuded, but that he retains an Inherent power, to make other Judges, with the same power that he gave in former K. C. 2 par. 3. commissions; And thus he may erect lands, in a re­gality, within the bounds of an heritable Sheriff-ship, and burghs Royal, within the bounds of a regality; And these [Page 12] bounds, within which, a Judge may exerce his commission, is called his Territory; so that if any Judge exercise Iurisdiction, without his Territory, his sen­tence is null: and among those who have a Cumulative Iurisdiction, he who first cites, can only Judge; and this is called, jus Praeventionis.

Privative Iurisdiction, is when one Judge has the sole power of judging, exclusive of all o­thers; such power have the Lords of Session, in judging of all Competitions, amongst he­ritable rights, and here there can be no prevention.

Iurisdiction, is founded to any Judge, either, because the defender dwels within his territory, which is called, Sortiri forum ratione domicilij: or Secund [...] Because, the crime was com­mitted [Page 13] within his territory, which is called ratione delicti; or Tertio, If the Person pursued, have any immovable estate, within his territory, though he live not within the same, he may be pursued by any action to affect that estate, which is called, sortiri forum ratione rei sitae.

A Iurisdiction, is said to be prorogate, when a person not other wayes subject, submits himself to it, as when he com­pears before an incompetent Judge, and propons defences.

All Judges with us, must take the Oath of Allegiance, K. C. [...] Par. 1. Sess. 1, Act 11. and the Test; par. 3 Act 18. whereby they swear, to maintain the Govern­ment of Church and State, as it is now established; and an oath de fideli administratione, before they exerce their Office, And [Page 14] no excommunicate person, nor rebell against the Govern­ment, can Judge by Our Law.

If a person be pursued be­fore a Judge, who is not competent, he may complain to the Lords of Session, and they will grant Letters of Advocation, whereby they Advocat, that is to say, call that cause from the incompetent Judge, to themselves; And if after the letters of Advocation are intimat to that Judge, he yet proceed, his Decreet will be null, as gi­ven Spreto mandato.

Iurisdiction is either Supream, inferior, or mixt: These courts are properly called supream, from whom there is no ap­peal to any higher Iudicatory, such as the Parliament, Privy Council, Lords of Session, the [Page 15] Criminal Court, and Exchequer: Inferior Judges are such? whose decreets, and sentences are lyable to the reviewes of the supream Courts, as Sherriffs, Stewards, Lords of Regality, Inferior Admirals, and Commissars, Ma­gistrates of Burghs Royal, Barrons, and Iustices of Peace. Mixt Iurisdiction, participats of the nature, both of the supream, and inferior courts; such a juris­diction have the high Admiral, and Commissars, of Edinburgh. Both which are in so far Su­pream; that Maritim Affairs, and confirmations of Testaments, must come in and be tabled, before the high Admiral, and Commissars of Edinburgh, in the first instance. As also, they both, can reduce the Decreets of inferior Admirals, and Com­missars; But seeing their De­creets [Page 16] are subject to the review, of the Lords of Session, they are in so far inferior Courts.

No inferior Iudge, can judge in the causes of such as are Cusin-germans to him, or of a nearer degree, either of affini­ty, or consanguinity; But there is so much trust reposed in the Lords of Session, that by a special K. J. 6. par. 14. Act 212 Statute, they can only be de­clined incases relating to their Fathers, Brothers, Sons, Ne­phews, or Uncles; which by a late statute K. C. 2 par. 3. Act 13., is likewise extend­ed to the degrees of affinity, and to the Lords of privy Council, and Exchequer, and the Commissioners of Iusticiary, and to all other Iudges within the Kingdom.

The members of the Col­ledge of Iustice, have this pri­viledge, that they cannot be pursued before any inferior [Page 17] Iudge; and if they be, the Lords will Advocate the cause to themselves.

Tit. III. Of the Supream Iudges, and Courts of SCOTLAND.

THE King, is the Author, and Fountain, of all power, and is an ab­solute Prince, having as much power, as any King, or Poten­tate, whatsoever, K. J. 6. Par. 15. Act 251 deryving his power from GOD Almighty alone K. C. [...] Par. 1. Sess. 1. Act 5. and 15▪ Par. 3. Act 2., and so not from the people. The special privi­ledges that he has, are called, His Prerogative Royal; such as, that he only can make Peace, or Warr, call Parliaments, Con­ventions, Convocations of the Clergy, make Laws Act foresaid; And generally all meetings called without his speciall command [Page 18] are punishable King Ch. 2. Par. 1. Ses. 1. Act. 2., he only can remit crimes, legittimate ba­stards, name Iudges, and Coun­cilors, give tutors Dative, and naturalize strangers; And is Supream over all persons, and in all causes, as well Ecclesiastick as Civil K. Ja. 6. par. 18. Act 1 K. Ch. 1. par. 1. Act 3. K. Ch. 2 par. 2. Ses. 1. Act 1..

The Parliament of old, was only the Kings Barron Court, in which all free-holders were oblidged to give sute, and pre­sence in the same manner, that men appear, yet at other head courts. And therefore, since we had Kings before we had Parliaments, it is rediculous to think, that the Kings power flowed from them.

The Parliament is called by Proclamation, now upon four­ty dayes, tho it may be Ad­journed upon twenty, but of old, it was called by brieves, [Page 19] out of the Chancellary. It con­sists of three Estates, viz. the Arch-Bishops and Bishops; and before the Reformation, all Abbots, and Mitred-priors, sat as Church men. Secundo, The Bar­rons, in which estate are com­prehended, all Dukes, Mar­quesses, Earles, Viscounts, Lords, and the Commissioners, for the Shires; for of old, all Bar­rons, who held of the King, did come; but the estates of lesser Barrons not being able to defray this charge, they were allowed to send Commis­sioners for every Shire. K. J. 1. Par. 7. Act 101 K. Ja. 6. Par. 11. Act 113 And generally, every Shyre sends two, who have their charges born by the Shyre. Tertio, The Commissioners for Burghs Royal, each whereof, is allowed one and the Town of Edinburgh two; Though all the three [Page 20] Estates must be cited, yet the Parliament may proceed, al­beit any one estate were ab­sent, or being present would disassent. The legislative power is only in the King, and the Estates of Parliament only con­sent, and in Parliament, the King has a negative voice, whereby he may not only hinder any Act to pass, but even any overture to be de­bated. The Acts of Parlia­ment must be proclaimed up­on fourty days, that the Lieges may know them K. Ja. [...]. Par. 7. Act. [...]28..

To secure the Crown against factions, and impertinent over­turs in open Parliament: Our Parliaments choose before they proceed to any bussiness, four out of each State, who with the Officers of State determine what Laws, or Overturs, are to be [Page 21] brought in to the Parliament; and they are therefore called, the Lords of Articles.

We have another meeting of the three Estates, called the Convention of Estates, which is now called upon twenty days, and proceeds in the same way that the Parliament does, dif­freing only from it, in that the Parliament, can both im­pose Taxations, and make Laws; whereas the Convention of Estates, can only impose, or rather offer Taxations, and make Statutes for uplifting those particular Taxations. But can make no Laws. And of old, I find by the Registers of the Conventions, (the eldest whereof now extent, is in Anno 1583.) that the Conventions of Estates consisted, of any num­ber of the three Estates, called [Page 22] off the Streets, summarly by the King; And yet they cryed down, or up money, and judg­ed processes, which now they do not.

The Privy Council is consti­tuted by a special commission from the King, and regular­ly their power extends to mat­ters of publick Government; in order to which, they punish all Ryots, for so we call breach of the peace. They sequestrate Pupills, gives ali­ments to them, and to wives, who are severely used by their husbands, and many such things, which require such summar procedour, as cannot admit of the delays necessary before other courts; And yet if any of these, dipp upon matter of Law, (for they are only Iudges in facto,) they [Page 23] remit the cognition of it to the Session, and stop till they hear their report. The Council delay Criminal executions, and sometime change one punish­ment into another, but they cannot remit Capital punish­ments; They may also Ad­journ the Session, or any other court: It has its own President, who preceeds in the Chancellours absence, and it has its own Signet and Seal: All who are cited to compeat there, must be personally present, because, ordinarly the pursuer concluds, that they ought to be perso­nally punished. All dyets there are peremptor, all debat is in writ, no Advocat being allowed to plead, because the Council only Iudges in matters of fact.

The Lords of Council and [Page 24] Session, are Iudges in all mat­ters of civil Rights; of old, they were chosen by the Par­liament, and were a committy of Parliament: But the present modell was fixt and established by King Iames the fifth, after the modell of the Parliament of Paris K. Ja. 5. par. 5. Act 36, 37, 38, 39, 40..

Of old it consisted of seven Ecclesiasticks, and seven Laicks and the President was a Church▪ man; But now all the fifteen are Laicks. And there sits with them four Noble—men, who are called extraordinarie Lords and were allowed to sit to learn, rather then decide▪ But now they vote after the ordinary Lords. All the Lords are admitted by the King▪ and by Statute cannot be ad­mitted, till they be twenty▪ five years of K. Ja. 6. Par. 12. Act 132. Age, and excep [...] [Page 25] they have a 1000 lib. or 20 Chalders of victual in yearlie rent. Nine are a Quorum.

Crimes of old, were judged by the Iustice General, Iustice Clerk, and two Iustice Deputes; but now five Lords of Session, are joyned to the Iustice General, and Iustice Clerk, and they are called the Commissioners of justi­ciary; Because, they sit by a special commission only: Four of which number make a Quorum in time of Session, three in time of Vacance, and two at Circuit Courts K. C. 2 Par. 2. Sess. 3. Act 18..

The Exchequer, is the Kings Chamberlain, Court K. C. 1 par. 1. Act 18. wherein he judges what concerns his own revenues; It consists of the Theasurer, (in whose place are sometimes named Com­missioners of the Theasury,) the Theasurer Depute, and as ma­ny of the Lords of Exchequer, [Page 26] as his Majestie pleases.

The High Admiral, has a commission from the King, to judge in all Maritime affairs, not only in Civil, but also in Criminal cases, where the crime is committed at Sea, or within flood-mark; nor can the Lords of Session Advocat causes from him K. C. 2 par. 3. Act 16.; tho they can reduce his Decreets, as he does the Decreets of all inferior Admirals, or Admiral Deputes, for many Heritors are constitute Admirals, with­in themselves, by a right from the high Admiral, since his Gift, or from the King before it.

Tit. IV. Of Inferior Iurisdictions, and Courts.

THe Sherriff, is the Kings chief and Ancient Officer, for preserving the Peace, and putting the Laws in executi­on K. J. 6. Par. 12. Act 124, he has both a Civil and Criminal Iurisdiction, and his Commission is under the Great Seal; he is obliged to raise the huy and cry after all Rebels, and to apprehend them when required: To assist such as are violently dispos [...]est: To apprehend such as say Mass, or trouble the Peace, and take caution for their appear­ance K. C. 2 Par. 1. Sess. 3. Act 15.: He nor no Inferior Iudge, can hold Courts in [Page 28] time of Vacance, in Civil cases, without a dispensation from the Lords of Session; But in Criminal cases, he needs no dispensation, because crimes should be instantly punished.

He is Iudge in all crimes, Except the four Pleas of the Crown, to wit, Murder, Fir [...] rasing, Robery, and ravishing of Women Leg. Mak. 2. Act 11. Quo­niam Attach. cap. 79; but murder he can judge, if the Murderer was taken with red-hand, that is to say, immediately committing the murder; In which case, he must proceed against him within three Suns; And in Theft, he may judge, if the Thief was taken with the fang.

The Shireff, is also judge competent, to punish Bloodwits, for which he may syne in 50 pounds Scots; but no higher, and for contumacy, he can fine no higher than 10. pounds.

[Page 29]A Lord of Regality, is he who has the land whereof he is Proprietar or Superior, e­rected with a Iurisdiction, equal to the justices, in Crimi­nal cases, and to the Shirreff, in civil causes; he has also right to all the moveables of Delinquents, and rebels, who dwell within his own Iurisdi­ction, whether these moveables be within the regality, or without the same; And be­cause he has so great power, therefore no Regality can legally be granted except in Parliament K. Ja. 2. Par. 1 [...]. Act 43..

The Lord of Regality, has also by his erection, power to repledge from the Sherriff, and even from the Iustices in all K. Ja. 6. Par. 11. Act. 29. cases except treason, and the pleas of the Crown, that is to say, to appear, and crave; that any dwelling within his Iurisdicti­on, may be sent back to be [Page 30] iudged by him, and he is obliged to find caution, that he shall do justice, upon the Malefactor whom he repledges▪ within year and day, and, the caution is called Cul▪ reach Quo­niam Attach, cap. 89..

The Stewart, is the Kings Sherriff, within the Kings own proper Lands, and these were erected, where the lands had been erected, before in Earledoms, or Lordships; For else the King appointed only a Baillie in them, and these Iurisdictions are called Bailliaries, the Baillies of the Kings proper lands having the same power with the Sherriff. And all these, viz. the Sherriff, the Stewart, and the Lord of Regalitie, proceed in their courts after the same way, and each of them, has a Head Burgh, where they [Page 31] hold their courts, and where all letters must be executed and Registrate.

The Prince of Scotland has also an Appange, or Patrimony, which is erected in a Iurisdi­ction, called the Principality. The revenues comes in to the Exchequer, when there is no Prince; but▪ when there is one, he has his own Chamberlain.

Iustices of Peace, are these who are appointed by the King, or Privy Council, to advert to the keeping of the peace, and they are judges to petty ryots, servants fies, and many such like, relate­ing to good neighbour-hood, exprest in the instructions, given them by the Parliament K. C. 2 Par. 1. Act 38. and are named by the Council; allbeit, be the foresaid Sta­tute, the nomination is to be [Page 32] by His Majestie, and His Royal Successors, which the King has now remitted to the Privy Council.

The Iustices of peace do name Constables, within their own bounds, from six months to six months; Their Office is, to wait upon the Iustices, and receive injunctions from them, delate such Ryots and Crimes to the Iustices, as fall under their Cognisance, Ap­prehend all suspect Persons, Vagabounds, and night Walkers, as is at length contained in their injunctions, given them be the foresaid Act.

Every Heritor may hold courts for causing his Ten­nents pay his rent; And if he be infeft, cum curijs, he may decide betwixt Tennent and Tennent in small debts, and may judge such as commit [Page 33] blood on his own ground; tho his land be not erected in a barronie; But if his land be erected in a barronie, (which the King can only do:) he may (like the Sherriff) un­law for blood-wits, in 50 lib. and for absence in 10. And if he have power of Pit and Gallows, he may hang and drown in the same manner as the Sherriff can.

Tit. V. Of Ecclesiastick Persons.

SInce the Reformation, the King is come by Our Law in place of the Pope K. Ja. 6. par. 1. Act 2,, and all rights to Kirk­lands, must be confirmed by him, else they are null; K. Ja. 6. Par. 9. Act 7. His Majestie only can call [Page 34] convocations of the Clergie; (for so we call our National assemblies K. Ja: 6. parl. [...]. Act 131. K. Char 2. par. 1. sess: 1. Act 4. sess. 3. Act 5.) and His Com­missioners sits in them, and has a negative.

We have two Archbishops, and twelve Bishops, and they are thus elected, the King sends to the Chapter a Conge de Eslire; (which is a French word,) signifying a power to elect, and with it a letter re­commending a person therein named, And the Chapter returns their electing: Where­upon the Kings grants a Patent to the persons, and a mandate to the Archbishop, or Bishops, to Consecrate him: Both which pass the great Seal K: J: 6: Par: 22: Act 1..

The Archbishops and Bishops, have the sole power, of cal­ling Synods within their own Diocies K. J. 6. par. 21. Act 1., and in these, they name the Brethren of the con­ferance: [Page 35] Who are like the Lords of Articles in the Parlia­ment, and by their advice the Bishops, depose, suspend, and manage.

Bishops have their Chapters, without whose consent or the major part, the Bishop cannot alienate K. Ja. 6. par. 18. Act 3., which Major part, must sign the deeds done be the Bishops; And it is suffici­ent if those of the Chaper, sign at any time even after the Bishop; but it must be in his lifetime: Nor are Minors, or absents, counted; and one having two benefices, has two votes; but the Appending of the Seal, is by Special Statute, declared to be sufficient in deeds done be the Archbishop of St. Andrews, without the Subscriptions of the Chap­ters K. Ja. 6. par. 19. Act 8..

A Person or Rector Ecclesi [...]e, [Page 36] is he who is presented to the teiths, jure proprio; But because of old, Parsonages were bestowed on Monastries, therefore they sent Vicars, who served the cure for them; and who got a share of the stipend, for their pains, either ad placitum; And they were called simple Vicars, or for life, and they were called perpetual Vicars. And after the Reformation, the Churches, which so be­longed to them continued Vica­rages still, The titular, who came in place of the convent, retaining the right to the Par­sonages duties.

There were in time of Poperie, Collegiat Kirks built, and doted by Kings, and great men, for singing of Mass, which were governed by a Provost, and some for singing, who were called prebends; And be­cause, [Page 37] some parishes were wide, some were allowed, to build a chapel for their private devotion; And since the Reformation, these Chaplanaries, and Prebendaries, are allowed to be bestowed by the Patrons, upon bursers in Colledges, not­withstanding of the foundati­ons K. Ja. 6. Par. 1 Act 12▪.

For understanding all these, it is fit to know; that the Primitive Church, either to invite men to build, or dote, or to reward such, as had, did allow such as either had built, or had bestowed the ground whereon to build, or had doted a church, already built, to present alone if, they were the only benefactors, or by turns, if there were moe, and they were called Patrons, or Advocati, Ecclesiarum ac­cording to that,

When a Church vaikes, the Patron must present within six months, a fit Person to the Bishop; else the right of presentation falls to the Bishop, jure devoluto; K. Ja. 6. Par. 2 Act 1. but if the Bishop refuse to admit and collate the person presented, the Patron must complain to the Archbishop, and if he also refuse, or delay, the privy Council will grant letters of horning against the Bishop, to receive the person presented Act fore­said., and during the vacancy upon that refusal, the Patron may retain the vacant stipends.

Upon this presentation the Bishop causes serve an Edict, on nine dayes; wherein all persons are after Divine service, [Page 39] advertised, to object, why, such a man should not be admitted to the benefice; And if none object, the Bishop con­fers the Church and benefice upon the Person presented; and this is called a Collation, after which, the Bishop causes enter him, who is so collated, by causing give him the Bible, and the Keyes of the Church, and this is called Institution, Presentation, gives only jus ad rem, and Institution, jus in re, and is as a Seasme.

If the Bishop be patron him­self, he confers pleno jure; and the presentation, and collation, are the same: Bishops also have mensal churches, so called; Because, they are de mensa Episcopi, being a part of his patrimony, in which he serves by his Viccars, and Plants as Diocessian Bishop; and if a [Page 40] town, or paroch, resolve to make a second Minister, when they are not patrons, he is cal­led, a Stipendiary Minister, and he is collated, and instituted also; but the patrons presenta­tion is sufficient in prebendaries, and other benefices, which has not curam animarum; And that without the necessitie of Collation, or institution, the Bishop having no other interest in the benefices, but in so far as they concern the cure of souls.

By Act of Parliament, all Ministers must have a com­petent Stipend, not below eight Chalder of victual, or 800. merks or above 1000. merks or 10. chalders of victual: (Except there be just reason to give less) K. Ja. 6. Par. 22. Act 3. together with a manse and gleib.

The manse, a manendo, is the place where the Minister is to dwell, the Gleib, from [Page 41] Gleba terra, is a peece of land for Corn and Fother to his Beasts: If there was a manse of old belonging to the parson, or viccar, the minister has right to it; If there was none, the parochiners must build one, not exceeding 1000 lib. and not beneath 500 merks K. Ja. 6 Par. 13 Act 161, at the sight of the Bishop of the Diocie, or such Ministers as he shal appoint, with two or three of the most discreet men in the paroch: as also the Heritors are lyable to repair the manse; But the present incumbent is obliged to leave it, in as good condition as they gave it to him K. Ja. 6 Par. 21 Act 8..

The Ministers Glieb, is to comprehend 4 Acres of Arrable land, or sixteen sowms-grass, where there is no arrable land, which is to be designed out of the lands, which belonged of [Page 42] old to Abbots, priors, Bishops, Friers, or any other Kirk▪lands within the parish King James 6 Par. 3. Act 48. with free­dom of foggage, pasturage for a horse, and two cows, fewel feal, and divot, which Gleibs are to be designed be Ministers, named by the Bishop, with the advyce of two of the most honest and godly of the pa­rishoners, and the designation is to be signed be the desig­ners King James 6 par: 11: Act 161.

If a Bishop or Minister, be consecrated, translated, or en­tered, to his benefice, before Whitsonday; he has right to the whole years fruits, be­cause they are then presumed to be fully sown, and if he be deposed or transported before Whitsonday, for that same reason he hath no part of that year; But if he serve the cure a while after Whitsonday, and [Page 43] be transported or deposed before Michalmas, he hath the half of that years Stipend; and if he serve till after Michalmas, he hath the whole years. So that the legal terms of bene­fices are Whitsonday, at which time the sowing is ended; and Michalmas, at which time the fruits are reaped.

They have likewise right to the Annat after their death, which was introduced by the Cannon Law, and by a special statute with us, is declared to be half a years rent of the be­nef [...]ce, or stipend, over and above what is due to the defunct, for his incumb [...]ncie; So that if he survive Whitsonday, he has the half of that year for his incumbencie, and the * King Charles 2: par. [...] sess: 3: Act 13. other half a Annat, and if he sur­vive Michalmas, he has the half of the next year for his Annat.

[Page 44]There is a committie of Par­liament, alwayes sitting, called the commission for plantation of Kirks, or Valuation of teinds, (consisting of so many of every estate of Parliament;) who have power to modifie, and augment Ministers Stipends, and to unite and disjoyn churchs, &c. whose decreets; because they are a commitie of Parliament cannot be reduced by the Session, or any other inferior Iudicature.

The Primitive Christians re­mitted the cognition of all cases that related to Religion, as the matters of divorce, bastardi [...], the protection of dying mens estates, to their Bishops; or such as they imployed, under them, who were called Officialls, and with us are called Com­missars; and are called there­fore Iudices Christianitatis: [Page 45] And they are therefore the only judges in divorce; because, it is the breach of a vow: And to scandale, because, it is an offence against Christianity, and of teinds and benefices; because, these are the patrimony of the Church: And of all matters referred to Oath, (if the same exceed not 40 lib. Scots) be­cause, an Oath is a Religious tye.

Every Bishop has his Com­missar, who has his commission from the Bishop only; and this extends no further, than the Constituents Diocy. But the archbishop of St. Andrews, has power to name four Commissars, who are called the Commissars of Edmburgh; because, they sit there, and they only are Iudges to divorce upon adultery, and can only declare marriages null, for impotencie and to [Page 46] bastardy, when it has any con­nexion with adultery, or mar­riage: And they only may reduce the sentences of all infer­rior Comm [...]ssars King James 6 Par 29. Act 6., though the Lords of Session may reduce even their decreets and sentences; They have instructions from the King, which are their Rule. And these are likewise record­ed in the books of Sederunt of Session;

Tit. VI. Of MARRIAGE.

MAarriage is def [...]ned to be, the co [...]uncto [...]n of Man and Wife, vow­ing to live inseparably together, till death.

By conjunction▪ [...]ere, consent is understood, n [...]m cons [...]nsus, non [...]oactus, facit matrimonium.

Consent, is either de futuro or de presenti, consent de futuro, is a promise, to solemnize the Marriage, which in Law, is called Spousalia; and this is not marriage; for either party, may resile, rebus integris, not­withstanding of the interveen­ing Promise, or Espousals, consent, de presenti, is that in which marriage does consist; and therefore, it necessarly follows, that none can marry, [Page 48] except these who are capable to consent, and so Idiots, and furious Persons, durante furore, cannot marry, nor Infants, who have not attained the use of reason: that is, when they are within the years of pupillarity; which is defined in Law, to be 14 years, in Males, and 12 in Foemales, nisi malitia suppleat ae­tatem.

The Law, in decencie, re­quires the consent of Parents, though a marriage without it, is valid, if the persons married be capable of consenting.

By our Law, none can Marry who are nearer relations than Cousin germans; which is suit­able to the Iudicial Law, of Moses Levit. chap. 18 K. Ja. 6, Par. 1. Act 1., and the same degrees porhibited in Consanguinity are also forbidden in Affinity.

Marriage, is either regular, and solemne, or [...]landestine; the [Page 46] regular way of Marrying, Is, by having their names proclaim'd in the Church, three several times, which we call Proclamation of Banns, without which, or, a Dispen­sation from the Bishop, the Marriage is called a Clandestine Marriage; and the parties are finable for it; but the Marriage is still Valid King Charles 2. parl. 1. Sess. 1 Act 34.; Cohabitation al­so, or dwelling together, is pre­sum'd to be Marriage King James 4 par. 6. Act 77. K Char Par. 2. Act 9. Sess. 3., if the Parties were repute, Man and Wife, dureing their lifetime, and so the Children are not Bastards; though they can­not prove that their Parents were Marryed; unless it be clearly prov'd that they were not Married.

From the coniugal Society, arises, the communion of moveable Goods betwixt Man [Page 50] and Wife; but the administra­tion thereof during the Mar­riage is solly in the Husband; which reaches even to Alie­nation, and disposing upon the Moveables, at his pleasure though they be not dispon' [...] to him by her ( Marriage, be­ing a Legal Assignation, as to thi [...] effect) but he has no fur­ther Right to her Heritage, save that he has Right to the Rents of it, and to Administra [...] and Manage it, during th [...] Marriage, and this is called Ius Mariti, and is so insepa­rable from the qualitie of [...] Husband; that he cannot b [...] Our Law, Renounce his Pon [...] of Administration, so that the [...] are both Domini, by this com­munion; but the Husband h [...] a Dominium actu, and th [...] Wife only habitu.

[Page 51]The Husband is lyable dureing [...]he Marriage to pay her moveable [...]ebts; but how soon the Mar­ [...]iage is disolv'd, he is no [...]urther lyable to pay her debts; than in as far as he was a Gainer by her Estate.

If the Wife contract any debt, or doe any other deed, after the Proclamation of Banns, the Husband will not be thereby Prejudg'd.

The Husband is also oblig'd [...]o Aliement his Wife, and if he [...]efuse, the privy Council, or Lords of Session, will modific [...]n Aliement to her out of her Husbands means, suitable to [...]is Qualitie, which they will [...]lso grant, ob saevitiam, if he [...]reat her Inhumanely.

The Husband is Tutor, and [...]urator to his Wife, and there­ [...]ore, if she had Tutors, or [Page 52] Curators, formerly, their powe [...] is devolved over by the Law upon the Husband; and what­ever deeds she does withou [...] his consent are null, & when s [...] is Cited, he must be Cited fo [...] his Interest; or if she Marri [...] during the Dependence of a [...] Process, the samen must up­on Supplication be continued a­gainst him.

Because, the sole administra­tion, during the Marriage be­longs to the Husband; Law hath secured the Wife, th [...] she cannot oblige her self when she is cloathed with [...] Husband, albeit with his con­sent, and therefore all Bands and Obligations, granted by [...] Wife stante Matrimonio, are [...] jure, null; but if she oblige h [...] self, ad factum prestandum, s [...] will be lyable, as if she shoul [...] [Page 53] oblige her self to Infest any Man in Lands properly belong­ [...]ng to her self.

During the Marriage, all donations made betwixt Hus­band and Wife are Revokable, at any time in their life, (except in so far as they are suitable provisions) least other­wayes, they might ruine them­selves, thorow Love, Fear, or Importunity; and that either expresly, by Revocking what is done (though they obliged themselves not to Revoke) or Tacitly, by disponing to others, what was so gifted.

All Rights made by a Wife to her Husband, or any third partie with his consent and to his behoof, are va­lid Rights; if they be Ra­tified by her before a Iudge, before whom she is to declare [Page 45] without the presence of her Husband, that she was not compelled to do that deed, and Swear, that she shall nev [...] quarrel the same: Whereas▪ if they be not Ratified, they may be quarelled, as extorted vi & metu, or may be Revokes as donatio inter Virum, & Uxo­rem, which the Ratification be­fore a Iudge does absolutely exclude, Propter Religionem Sacramenti, the Ratification, being extra presentiam mariti.

Marriage is disolved either by Death, or Divorce, and [...] the Disolution of the Marriage be by Death there is a diffe­rence, if the samen be within Year and Day of the Marriage, or thereafter; for if either the Husband or the Wife die with­in the Year, all things done in tuitu Matrimonij, become void▪ [Page 55] and return to the same condi­tion they were in before the Marriage; except there be a living Child, Procreat of the Mar­riage, who was heard cry.

If the Marriage be disolved by Death, after the Year ex­pyres, then the Wife surviving, has right to a third of the moveable Estate; if there be Children; and to the half, if there be none, and this is called jus Relictae; and tho this Right does not hinder the Husband, to give or dispose upon his moveables in his Life, yet he cannot do any deed to defraud his Wife of this Right, the fraud being palpable; she has also a right to the liferent of the third of the lands, wherein he dyed in­fest, and this is called a Widows Terce; and to any other pro­visions contained in her Con­tract [Page 56] of Marriage, which provi­sion if it exceeds the Terce, it ex­cludes K. C. 2 Par. 3. Act 10. it; and the Husband surviving has Right to the Tocher: and if he marry an Heritrix, he has Right to all her Lands, after her Death, during his own life, if there be a Child of the Marriage who was heard cry, and this is cal­led, the courtisie of Scotland Reg. Ma. lib. 2. cap. 58. Leg. Burg. cap. 44..

Marriage is disolved by Di­vorce, which is granted either for wilful disertion, and non adherence, to be procured by a Process before the Commissars of Edinburgh for non adherence; when either Partie refuse to cohabite together, and remains in their malicious obstinacie four years, and are thereupon ex­communicate K. Ja. 6. Par. 4 Act 55, or for Adultery, in both which cases the Per­suer must give his Oath, that [Page 57] the Process is not carryed on by collusion, and after a Decreet of Divorce is obtained, in either case the Partie innocent may marry; but the Partie that is guil­ty cannot, and besides looses all the benefite that they could expect by the Marriage.

Tit. VII. Of Minors, and their Tutors, and Curators.

WHilst Persons are within twenty one years, the Law presumes them to want that firmeness of Iudgement, which is requisite, for the exact ma­nadgement of their Affairs; and during that time, they are called Minors, by a general [Page 56] [...] [Page 57] [...] [Page 58] Terme; though properly, such onely are to be called Minors, who are past Pupillarity, which lasts in Males till fourteen, and in Females till twelve.

Tutory may be defined, a power and faculty, to govern the Estate and Person of Pupils; and the Law gives Tutors, and Curators, for the manadgement of their Af­fairs.

There are three kinds of Tutors, viz. Tutor Nominate, Tu­tor of Law, and Tutor Dative, Tutor Nominate, (who is like­wise called Tutor Testamentar,) is he who is left Tutor by the Father in his Testaments, or any other write, and he is not o­bliged to find caution, or give his Oath, de fideli administratione; because it is presumed, the Pa­rent hath chosen a sufficient person.

[Page 59]The Father onely can name Tutors; but if the Mother, or even a Stranger, give or dispone any thing to a Child, he may name a Tutor to manadge what he gives; but if there be no Tutor nominate, or if he ac­cepts not, then there is place for a Tutor of Law, who is so called, because he succeeds by Law, and generally, the near­est Agnate (for so we call such as are related by the Father) who is to succeed to the Minor, being past twenty five years, and would be Heir to him, is his Tutor in K. Ja. 3 Par. 7. Act 32. Law: He takes a Brieff out of the Chanc [...]llary, and serves himself before a Iudge, to whom it is directed, and the Tutor of Law must find caution before he administrate.

If he do not s [...]rve within a year after the time he might [Page 60] have served, then any person may give in a Signator to the Exchequer, and he gets a gift under the Privie Seal, of being Tutor Dative, and finds caution, acted in the books of Exchequer: But of old, they found caution in the Commissars books: this Tutor and he onely is oblidged to make Faith, de fideli admi­nistratione.

If there be more Tutors than one, the major part must all consent; but the Pupil needs not subscrive: But if there be a Tutor, sine quo non, he must al­wayes be one of the Consenters.

After the years of Pupillarity there must be a summons raise [...] at the Pupils instance, sum­monding some of the Fathers­side, and some of the Mothers­side, upon nine days warning▪ to appear before any Iudge [Page 61] and at the day, the Minor gives in a list of those he in­tends to choise to be his Cu­rators, and those who accept must Subscrive the acceptation, and they must find Caution de Fideli Q. M. Par. 6. Act 35., upon all which the Clerk extracts an Act, which is called, an Act of Curatory: There uses to be sometimes, Curators, sine quo non, and the Major part with him is still a Quorum; except the Minor in his particular Election hath ap­pointed otherwise; for the Quorum is Arbitrarie, and the Act bears how many shall be a Quorum.

There are these differences betwixt Tutors and Curators, that Tutor datur Personae, Cu­rator rei, a Tutor Acts, and Subscrives for his Pupill, a Cu­rator with him; but both [Page 62] must make inventarie of all the Pupills Estate before they Administrate, with consent of the nearest of Kinne on both sides, and if they neglect to make Inventary, they will get no Expenses allowed them during their Administration, and may be removed from their Offices as suspect K. C. 2 Par. 2. Sess. [...]. Act 2.; nei­ther have Sallaries: and both are lyable to Compt, but not till their Office expyre, as both have Action against their Minors, for what they profi­tably expended during their Administration, which is called, Actio tutelae Contraria.

If the Minor have Curators, and do any thing without their consent to his prejudice; (for he may make his con­dition better without them, but not worse, the advantage [Page 63] being evident and without hazard) then that Act is, ipso jure null, that is to say, he needs not Revoke; but if he have no Curators, then any Act he does to his own preju­dice is valid; but he must reduce the same thus, viz. he must writ a Revocation and Subscrive it before two witnesses, and Registrate it, and there­upon he must raise and exe­cute a Summonds of Reduction of that Act, ex capite Minoritatis, & laesionis, before he be 25 years of age, wherein he must make appear, he was both Minor, and was laes'd; other­wayes, the Lords will not re­pone him: Though this Re­vocation be not absolutely ne­cessarie, yet the executing of a Summonds before 25 is abso­lutely necessary: and though a [Page 64] Minor swear not to Revoke, yet this Oath is declared null by Law, and the Eliciter of it punishable, and infamous K. C. 2 Par. 3. Act 19.; but if he Fraudulently circumveen [...] another, by saying he was Major, he will not be resto­red against his own fraud.

A Tutor or Curator, cannot persue his Pupill, ▪till he has compted for his intermissions; for its presum'd he has his Pupills Estate in his own hands, and whatever Right he buyes of what belong'd to his Pupill is presum'd to be bought with his Pupills means; and so the ad­vantage must accress to the Pupill.

So carefull has Our Law been to protect minors, and to secure Old Estates, that minor non tenetur placitare super haeredi­tate paterna Sta­tu [...]: a Will: cap. 39., that is to say, a [Page 65] minor is not obliged to answer any process concerning his Fa­thers Heritage; but, yet if his Fathers Right be quarrelled for his Fathers crimes, or delicts, as in the cases of falshood, for­feiture, or Recognition, these cases are excepted, and he is obliged to answer. Secundo, This priviledge extends not to Actions concerning marches, or division of lands. Tertio, It defends not against the Superi­our perseuing for his casualities. Quarto, Where the minors right is only quarrell'd consequen­tiallie, the chief right quarrolled belonging to a major, there is no place for this priviledge. Quinto, It defends not in cases where the Heritage was deryv'd from Collaterals, such as Bro­thers, or Uncles. Sexto, It defends only where the Heri­tage [Page 66] descended even from the Father, or Grand-Father, if they dyed in peaceable Possession, and if no Process was intented against them in their own life time, Septimo, It takes on­ly place, where the Father was actually Infeft; but then it is accounted Heritage, tho it was conquest by the Father.

The priviledge of minoritie, is in some cases allowed to the minors Heir: Which are comprised in these following rules 1. If a minor succeds to a minor, the time of Restitution is Regulated by his own minority, and not by his Predecessors. 2. If the Predecessor be major, and Intra quadriennium utile restituti­one, is competent during the Heirs minority; but he has no further of the anni utiles, than remained to the defunct, the [Page 67] time of his deceass. 3. If a major succeed to a minor, he has only quadriennium utile, after the minors deceass, or so much thereof as was unexpyred at that time.

Minoritie ends both in Men and Women, when they are 21. years of age compleat; but after that there is 4. years gran­ted, wherein they may reduce what they did Revoke before they were 21. years compleat, and these years are called, qua­drienneum utile.

If a Man be an Idiot, or Furious he must be found to be so by an inqueist, and thereafter his nearest of kinne may serve themselves Tutors; or the Ex­chequer may grant a Tutor dative, if they serve not, but the Tutor in Law, will be preferred to that Tutor dative offering to [Page 68] serve quandocunque, and it must be proven to the inquiest at the time of the service, that he is furious, and when he began to be so, and all deeds done by him after that are null, not only from the date of the service, but from the time that he was found to be Idiot, or K. J. 6. Par. 10. cap. 18. Fu­irous.

If a Person be Prodigal, or Spend-thrift, he interdicts him­self, either voluntarly, which is done by a Band, whereby he obliges himself to do no­thing without the consent of such friends as he therein con­descends upon; and these are therefore called the interdicters, and if this Narrative be false, so that the person is not im­provident, as he relates in the Band, this voluntar interdiction will be reduc'd. Secundo, In­terdiction [Page 69] proceeds upon a persute, at the instance of the nearest of kin, against the prodigal whom the Lords will interdict if they see cause; or 3. though there be no persute; yet if in another process they find he has been often, or is obnoxious to be cheated, they will interdict him, Ex proprio motu, and these are called Iudicial interdictions; and no interdiction lasts longer than the Levitie and Prodigality which occasioned it, but this requires also the sentence of a Iudge.

Upon this voluntar Band, the Lords of the Session grants letters of Publication, and after these Letters are published, at the Mercat Cross of the head Burgh of the Shire, where the person interdicted dwells, and are Registrat; the person inter­dicted [Page 70] can do nothing to the prejudice of his heritable Estate, otherwayes the interdicters may reduce these deeds as done after the publication of the in­terdiction; (for interdictions extend only to Heritage; but yet the person himself is stil lyable to personal execution, even upon these deeds done after inter­diction.

A Father, is likewise in Law Administrator to his own Chil­dren, that is to say, is both Tutor, and Curator, to them, if they fall to any Estate dur­ing their minoritie, and if ei­ther Pupill or Minor have any Legal Action to prosecute, and want Tutors or Curators, the Lords will upon a Bill Autho­rize Curators, who are there­fore called Curators, ad lites.

All Tutors and Curators can [Page 71] act and do whatever the Pupill might do if he were major; except in selling of land, which they cannot sell with­out a sentence of a Iudge [...]; finding the vendition necessar for payment of debt, or setting Tacks to last beyond their own Office.

All these Tutors, Curators, and Administrators, or any who behave as such, and who are called in Our Law Pro-Tutors, are lyable to do exact Dilligence, and there­fore; if any of their Pupills Debitors becomes Bank-rupt, or their Tennents break, they are lyable and the Pupill may pursue any one of the Tutors for the negligence of all the rest, but he has his relief a­gainst the rest:

They are likewayes lyable [Page 72] to put the minors Rents, out upon Annuallrent, within half a year, or a term after they re­ceive them, and to put out his money▪ upon Annuallrent within a year, both which times are allowed to get good Debitors but if his Bands bear Annuallrent, they are only ob­liged to take in these Annuall­rents once during their Office, and to turn them in a Prin­cipal summ, bearing Annuall­rent.

After Tutors and Curators have once accepted they can­not Renounce; but if they mis­carie in their Administration, they may be removed, by an action, as suspect Tutors.

If there be moe Tutors or Curators, the Office upon the death of any of them Accresses to the Survivers; except they [Page 73] be named joyntly; for then the first Nomination is disolved by the death of any one of them, the defunct not having trusted any one, and for the same reason, if a certain number be declared a Quorum, the Nomination fails, if so many dye as that this number survives not, nor does the Office Accresse to such as Survive.

We have little use in Scot­land, of what the Institutions of the Roman Law teach, con­cerning slaverie, or Patria po­testas, for we as Christians al­low no Men to be made Slaves, that being contrare to the Christian liberty; and the Fatherly power or Patria potestas, has little effect with us; for a Child in Familie with his Fa­ther, acquires to himself and not to his Father as in the Civil Law.

Tit. I. Of the Division of Rights, and the several wayes by which a Right may be acquired.

BEing to treate in the second Book of things themselves, to which we have Right, and how we come to have right to them, It is fit to know.

That some things fall not under commerce, and so we cannot acquire any propertie in them, such as are things common, as the Ocean, (though our King has Right to our nar­row Seas, and to all the Shoars.) [Page 75] Secundo, Things publick, which are common only to a Nation or People, as Rivers, Har­bours, and the Right of Fishing, in the saids Rivers. Tertio, res universitatis, which are common only to a Corporation or Citie, as a Theater, or the Mercat place, and the like: Quarto, Things that are said to be no Mans, but are Iuris Divini, which are either sacred, such as the Bells of Churches, for though we have no conse­cration of things since the Re­formation, yet some things have a Relative Holiness and Sanctity, and so fall not under Commerce, that is to say, can­not be bought and sold by Pri­vate Persons. Quinto, Things that are called sanctae, so called because they are guarded from the injuries of Men, by speciall [Page 76] Sanctions, as the walls of Cities, Persons of Ambassadours, and Laws, Sexto, Things Religious, such as Church-Yeards.

As to those things which fall within Commerce, we may acquire right to them, either by the Law of Nature, and Nations, or by our Civil and Municipal Law, dominion or propertie is acquired by the Law of Nations either by our own fact and deed. or Secundo, by a connexion with, or dependence up­on things belonging to us, the first by a General term is called Occupation, and the last Accession.

Occupation, is the apropriating and apprehending of those things, which formerly belonged to none. And thus we acquire propertie in wild Beasts, of which we acquire a Right how soon we apprehend them, or are in the [Page 77] prosecution of them with proba­bilitie to apprehend them, as also we retain a right to them whilst they remain in Our possession, and evenafter they have escapt, if they be yet recoverable by us. Secundo, Propertie comes by Accession, as for instance, a House Built upon, or Trees taking root in our ground, and the product also of our beasts be­long to us, and ground that grows to our ground becomes insensibly ours, and is called, Alluvio by the Civilians. And it is a ge­neral Rule in Law, that acces­sorium sequitur Naturam sui prin­cipalis; and yet a Picture drawn by a great Master upon another mans Sheet or Table, belongs to the Painter, and not to the Master of that whereon it is drawn, the meanness of the one ceding to the nobleness of the other.

[Page 78]There are many other wayes of acquiring Right and Property, which may be refer­red either to Occupation, or Ac­cession; as if a Man should make a Ship of my Wood, it would become the Makers, and would not belong to me, to whom the wood belonged, and this is called Specification, in which this is a general rule, that, if the species can be reduced to the rude masse of matter, then the Owner of the matter is also owner of the species, or thing made; As, if a Cup be made of another mans Silver, the cup belongs not to the maker, but to the owner of the Mettle; because it can be reduced to the first Mass of Silver, but if it cannot be re­duced, then the Species will undoubtedly belong to him that made it, and not to the [Page 79] owner of the matter, as Wine, and Oyl, made of anothers Grapes, and Olives, which be­longs to the maker, seing wine, cannot be reduced to the Grapes of which it was made.

Propertie is likewise ac­quired when two or moe Per­sons mixe together in one, what formerly belonged to them severally, and if the mat­terials mixed be liquid, it is called by a special name, Confusion, as when several Persons Wines are mixed and confounded toge­ther; but if the particulars mixed, be dry and solid, so as to retain their different shapes and Forms, it is called commix­tion, and in both cases, if the confusion, or commixtion be by consent of the Owners, the body or thing resulting from it, is common to them all; but [Page 80] if the Commixtion be by chance, then if the matterials cannot be separated, the thing is yet common; as when the Graine or Corns of two persons are mixed together by chance, here there must necessarly be a community; because, the se­paration is impossible; but if two Flocks of sheep belonging to different persons should by accident mix together, there would be no community; but every man would retain right to his own Flock, seing they can be distinctly known and separated, and these two ways of acquisition are by accerssion.

The last, and most ordi­narie way of acquiring of pro­perty, is by tradition, which is defyned a delivery of possession by the true owner, with a design to transfer the property to the Re­ceiver, [Page 81] and this translation, is made either by the real delivery of the thing it self, as of a horse, a cup, &c. or by a Sym­bolick delivery. As, is the delivery of a little Earth and Stone in place of the Land it self; for, where the thing cannot be truely delivered, the Law allows some symbols, or marks of tradition, and so far is tradition necessary to the acquiring of the prorerty in such cases, that he who gets the last right, but the first tradition is still preferr'd by our Law.

If he who was once Proprie­tar does willingly quite his Right, and throw it away, (which the Civil Law calls, pro derelicto habere,) the first finder acquirs a new Right, per inventionem, or by finding it, by which way also men ac­quire [Page 82] right to Treasures, and to Iewels lying on the Shoare; and generally to all things that belonged formerly to no man, or were thrown away by them; But it is a general Rule in Our Law, that what belongs to no man is understood to belong to the King.

Prescription, is a chief way of acquiring Rights by the Ci­vil Law; but because, that Title comprehends many things, which cannot be here understood, I have treated that Title amongst the ways of loosing Rights, it being upon diverse considerations, modus acquirendi & amittendi.

We also acquire Right to the Fruits of those things which we possess, bona fide, if these Fruits were gathered in or uplifted, and consumed by [Page 83] us, whilst we thought we had a good Right to the thing it self, for though thereafter our Right was found not to be good; yet the Law, judged it unreasonable to make us restore what we lookt upon as our own; when we spent it, and therefore, whenever this bona fides ceaseth, which may be several wayes, especially by intenting an acti­on at the true owners instance, we become answerable for these Fruits; though there­after they be percepti & consump­ti, by us.

Tit. II. Of the difference, betwixt Heri­table, and Moveable Rights.

HAving in the former Title cleared, how we acquire Rights, we come now to the division of them.

The most comprehensive [Page 84] division of Rights amongst us, is, that whereby they are di­vided into Heritable, and Moveable Rights.

Heritable Rights in a strict sense, are only Lands, and all summs of money, and other things which can be moved from one place to another are moveable but that is only coun­ted Heritable in a Legal Sense, which belongs to the Heir, as all other things which fall to the Executor are moveable, and so sums of money, albeit of their own nature they are moveable; yet if they were lent for Annualrent they were of old repute heritable.

For understanding where­of it is necessar to know that albeit by the Cannon Law all Annualrents were forbidden, as being contrare to the Na­ture of the thing, money [Page 85] being barren of its own na­ture: yet the reformed Churches do generally allow it; nor were the Iews pro­hibited to take Annualrent from Strangers.

Before the year 1641 all Bands, and sums, bearing Annualrent, were Heritable, as to all effects so that the Exe­cutor, who is Haeres in mobilibus, had no interest in, nor share of such Bands, but they be­longed intirelie to the Heir; but that Parliament finding that the rest of the Children, beside the Heir had no provision by Our Law, except an equall share in the moveables, they therefore ordained that all Bands for summs of money should be moveable, and so belong to the Executors; except either the Executors, [Page 62] were secluded, or the debitor were expresly obliged to infest the Creditor, which is like­wise renewed since the Kings Resturation K. C. 2 Par. 1. Act 32.: For in these cases, it was clear that by the disti­nation of the defunct, (which is the great Test in this case) these sums were to be Heritable; and yet all sums bearing An­nualrent, are still Heritable in so far as concerns the Fisk, or the Relict; so that if a band bear Annualrent, to this day the Fisk cannot claime any right to it, as falling under the Rebells single Escheate, (whereby when he becomes Rebel all his Moveables fall to the King;) nor has the Relict any right to a third of it, as she has to a third of all moveables, the Law▪ having presumed that Relicts will be still suffici­ently [Page 87] secured by their contracts; but whether the sum be Heri­table, or moveable, all the by­gone Annualrents, and gene­rally all bygones are moveable, as to all intents and purposes, and so fall to Executors, and to the Fisk, and to the Relict; because bygone rests are lookt on as money lying by the debitor, they being already payable, as all obliga­tions bearing a tract of future Time belong to the Heir.

So far does the Law defer to the will of the Proprietar, in regulating whither a sum should be Heritable, or Move­able; (the Law thinking that every man is best Iudge how his Estate shal be bestowed;) that if a man destinate a sum to be imployed upon Land or [Page 88] Annualrent, this destination will make it Heritable, and to be­long to his Heir; or though the sum was originally secured by a moveable band, yet it may become heritable by the creditors taking a superveening heritable se­curity for it, or by comprising for his security; but yet the Creditors design is more to be considered, than the superveni­ent right; as for instance, a sum may be moveable ex sua natura, and yet may be secur­ed by an heritable surty; as in the case of bygone annualrents, due upon infeftment of annual­rent, which are unquestionab­ly moveable of their own na­ture, and yet they are heri­tably secured; and even Exe­cutors may recover them by a real Action of poynding of the ground: And, if a Wedset bear [Page 89] a provision, that notwithstand­ing of Requisition, the Wedset shall still subsist, the requisition will make the sum moveable, though it continue secured by the Infeftment; as also, sumes ab initio Heritable, may be secured by an Accessory moveable security, without altering their Nature; as for instance, if one take a Gift of Escheat for se­curing himself in Heritable sums; this does not alter the Nature of the former Heri­table Right.

Though a sum be Heritable, yet if the Creditor to whom it is due require his money, either by a charge or requisition it be­comes moveable, for the Law concludes in that case, that the Creditor designs rather to have his money, than lying in the Debitors hands [Page 90] upon the former security; and if it were lying in money beside him it would be moveable: and a requisition to one of the Cautioners will make it move­able, as to the Principal and all the other Cautioners; But a charge on a band wherein Exe­cutors are secluded, will not make the sum moveable, for the design of the Creditor is pre­sumed to continue in favours of the Heir, till the sum be payed, or the Band innovated; but it has been otherways decided of late; And for the same Reason a requisition used by a Wife, who has a heritable sum, that falls not under the Ius Mariti, will not make it moveable, since it is presumed she designed only to get payment, but not to give it to her Husband.

But if the Creditor who re­quired [Page 91] his Money take annual­rent after that Requisition, it is presum'd that he again altered his Inclination and resolved to have it Heritable, & to continue due by vertue of the first Security

Though a Band be heritable, as bearing annualrent, yet be­fore the terme of payment it is moveable, as to all persons.

From all which it is clear, that some sums are moveable as to the Executor, but not as to the Fisk or Relict, and some may be moveable, as to the Debitor and his Executors, and yet may be Heritable as to the Creditor and those representing him, as for instance, an obli­gation, to imploy a sum due by a moveable band, upon Land or annualrent for the Heirs of a Marriage, that sum as to the Creditor would be Heretable, yet [Page 92] quo ad the Debitor it would re­main moveable.

Title III. Of the Constitution of Heritable Rights, by Charters and Seasins.

HAving treated in the former Chapter of the difference betwixt He­ritable and Moveable Rights, it is now fit to begin with Heri­table Rights as the more Noble.

Our Heritable Rights are Regulate by the Feudal Law, by which Feudum, which we call a few was defined to be a free and Gratuitous Right to Lands made to one for service to be performed by him: he who grants this Few, is in Our [Page 93] Law called the Superiour, and he to whom it was granted is called the Vassal; the Superi­ours Right to the Fie is called Dominum directum, and the Vassals Right is called Dominum utile, and if that Vassal dispone the Land to be holden of himself, then that other Person who receives that Few, is called the sub-Vassal; whereas the Vassal who granted the Few becomes the immediate Superiour to this sub-Vassal, and the Vassals Su­periour, becomes the Sub-vassals mediate Superior, and is so called because there is ano­ther Superiour interjected betwixt him and the sub-Vassal.

The Superiour dispons ordi­narly this Few to be holden of him by a Charter and Seas [...]n: The Charter is in effect the disposition of the Few made [Page 94] by the Superiour to the Vassal, and when it is first granted, it is called an Original Charter or Right, and when it is renewed it is called a Right be progress, and proceeds either upon Re­signation when the Lands are Resigned in the Superiours hands for new Infeftment, either in fa­vours of the Vassal himself, or of some third partie, or by con­firmation, when the Superiours confirms the Right formerly granted, and if it is to be holden from the Disponer of the Supe­riour that is called a me, and is a publict Right, and is still drawn back to the date of the Right Confirmed; But if the Confirmation be onely of Rights to be holden of the Vassal, it is called, de me, and is a base Right, the effect of this Char­ter being to secure against for­faulture [Page 95] or recognition of the Su­periour, all which are voluntar Rights; but if they be granted in obedience to a Charge up­on Apprising or Adjudication, they are necessar.

If the Charter contains a Clause de novo damus, then it has the Effect of an Original Right, and secures against all Casualities due to the Superiour; in which the first thing ex­pressed is for what Cause it was granted, and if it was granted for Love and Favour, Our Law calls that a lucrative cause, or for a Price, and good Deeds, this we call an Onerous Cause.

The second thing conside­rable in a Charter, is the dispo­sitive Clause, which contains the Lands that are disponed; and regulariter with us, the [Page 96] Charter will give right to no Lands, but what are contain­ed in this Clause, though they be enumerated in other places of the Charter.

The third Clause is that wherein is exprest the way how the Lands are to be hold­en of the Superiour, and this is called the Tenendas, from the first word of the Clause.

The fourth Clause, is that which expresses what the Vas­sal is to pay to the Superiour, and this duty is called the Reddendo, because the Clause whereby it is payable begins, Reddendo inde annuatim.

The fifth Clause, is the Clause of warrandice, which is either Personal, or Real, Per­sonal warrandice is when the Author or disponer is bound per­sonally, and is either simple [Page 97] warrandice, which is only from subsequent and future deeds of the Granter; and this warrandice is implyed in pure donationes; or secundo, warrandice from Fact and Deed, which is, that the Granter hath not done, or shall not doe any deed prejudicial to the right warranded. Or Tertio, Warrandicè is absolute, and that is, to warrand a­gainst all mortals: And in absolute warrandice, this is a rule that an Adaequate Onerouse cause presums still absolute war­randice; But absolute war­randice in Assignations imports only that the debt is truly due, and not that the Debitor is sol­vent.

All Rights Granted by the King are presumed to be Do­nations, and import no war­randice.

[Page 98] Real warrandice, is when Infeftment of one Tenement is given in security of one an­other.

The Effect of warrandice is, that if the thing warranded be taken away, there is compe­tent to the partie, to whom the warrandice is granted, an action of eviction, for relief.

Because Tradition is requisite to the compleating of all Rights; therefore the Charter contains a Command by the Superiour to his Bailly; to give actual state and Seasin, to the Vassal, or to his Atturney by Tradition of earth and stone, and this is called the precept of Seasin, and upon it the Vassal, or some other person having a Procuratory from him, gets from the Bailly earth and stone [Page] delivered, in presence of a No­tar and two witnesses, which Notar writes out an Instrument upon all this, which Instrument is called the Seasin. And if the Superiour gives Seasin him­self, it is called a Seasin, (pro­priis manibus;) so that a Formal Seasin is the Instrument of a Notar, bearing the delivery of earth and stone, or some other Symbols by the Superiour, or his Bailie to the Vassal, or his Atturney, the Tenor where­of is known and fixt, and now by a late Statute the witnesses must subscrive the Instrument K. C. 2 Par. 3. Act 5.; and thus the Vassal stands In­fest in the Land by Charter and Seasin.

This Seasin being but the as­sertion of the Notar, proves not▪ except the warrand of it, that is to say, the precept or di­sposition [Page 100] whereon it proceeded be produced; But a Seasin gi­ven by a Husband to his Wife, or by a Superiour to his Vassal, propriis manibus, (that is to say, by the Granters own hands with­out a Precept) is sufficient, when the Competition is with the Gran­ters own Heirs; or with no more solenin Rights, and is not exorbitant: and after fourty years, there is no necessity to produce either precept of seasin, or Procuratorie of Resignation by a special statute K. J. 6. Par. 14. act 214..

This Seasin must be registrated within 60. dayes, either in the general Register at Edinburgh or in the particular Registers of the Shire; Stewartry or Regality where the land lyes, K. J. 6. Par. 22. Act 16. els the right will not be Valid, against a singular Successor; that is to say, if any other person buy [Page 101] the Land, he will not be ob­liged to take notice of that Seasin; but the Right will still be good against the Gran­ter and his Heirs.

If Lands lye Discontigue, e­very Tenement must have a spe­cial Seasin; except they be unite in one Tenement; and then one Seasin serves for all; if there be a special place exprest, where Seasin should be taken; but if there be no place exprest; then a Seasin upon any part will be sufficient, for the while, Contiguous Tenements, (these being naturally unite;) but will not be sufficient for Lands, lying discontigue; And one Seasin will serve for all Tenements, of one kind; but where they are of several kinds; as Lands, Milnes, &c. they will require several Seasins; The [Page 102] symbols of Possession being diffe­rent; for Lands pass by the Tradition of earth and stone, and milnes by the clap and happour.

Sometimes Lands are erected into a Barronie, (the nature of which is explained before▪ Tit. Inferiour Iudges,) and when­soever this is granted, Union is imployed as the lesser de­gree.

Erection in a Barrony can only be by the King, and is not▪ Communicable by any Subaltern rights, albeit the whole Bar­rony be disponed; tho the Union may be thereby Communicate. This union can only be granted by the King, which he may grant either Originally, or by Con­firmation; and being so granted it may be Transmitted by the Receiver to a Sub-Vassal; but if a part of the lands united be [Page 103] disponed, the whole union is not dissolved, but the Part disponed onely; and this Uni­on, and all other priviledges, and provisions, can onely be granted in the Charter; but not in the Seasin.

Tit. IV. Of the Several Kinds of Holding.

THe first division of Feus from the several kinds of holding, is that some lands, hold ward, some Feu, some Blench, and some Bur­gage.

For understanding ward­holdings, it is fit to know, that at first, all Feus were Rights granted by the Longo-Bards, [Page 104] and the other Northern Na­tions, (when they conquest Italy) to their own Souldiers for service to be done in the Warrs; and therefore Ward­holding which is the properest holding, is called servitium mi­litare, and all Lands are there­fore presumed to hold ward▪ except another holding be ex­prest; and servitium debitum & consuetum, is interpret to be ward-holding.

The advantages arising to the Superiour, by the speciality of this holding, are that the Supe­riour has thereby the full meals, and duties of the ward-Lands, during the years that his Male-Vassal is Minor Q. Ma Par. 3. Act 5. K. Ja. 6. Par: 2. Act [...]2.; for the Feu being given originally to the Vassal, for Military service, it returns to the Superiour, dur­ing Minority; because the Law [Page 105] presumes, that the Minor is not able to serve his Superiour in the Warrs, but in Female-Vassals, this casualitie lasts only till 14. years compleat; because, they may then marry husbands, who may be able to serve the Superiour, and this properly is called the Casuality of ward; for Marriage, is due in other hold­ings, as shall be cleared in the next Title.

Feu holdings, is that where­by the Vassal is obliged to pay to the Superiour a sum of money yearly, in name of Feu­dutie nomine feudi firmae.

This holding has some Re­semblance to the ( Emphyteosis) in the Roman Law; but is not the same with it; for Emphyteosis was a perpetual Location, con­taining a pension, as the hyre which was granted, for Im­proving [Page 106] and Cultivating Barren ground; but our Feu-holding, comes from the Feudal Law, (whereof there was no Vestige in the Civil Law,) and passes by Infeftment to Heirs.

Blench-Holding, is that where­by the Vassal is to pay an E­lusory duty, meerly for ac­knowledgement, as a penny, or a pair of Gloves, nomine albae firmae, and ordinarly it bears, si petatur tantum.

These Blench duties are not due, whether they be of a yearly growth, or not; ex­cept they be required yearly by the Superiour K. J. 6. Par. 18. Act 14., as for in­stance, if the Blench dutie be yearly Attendance at such a place▪ or a Rose yearly, the Superiour can seek nothing for his blench dutie, except he required the same with­in the year.

[Page 107] Burgage-holding, is that duty which Burghs Royal are obliged to pay the King, by their Charters, erecting them in a Burgh Royal, and in this the Burgh is the Vassal, and not the particular Burgesses, and the Bailiffs of the Burgh are the Kings Bailiffs; nor can Seasin in Burgage Lands, be given by any other than the Bailly, and Town Clerk K. J. 6. Par. 1. Act 27., if the Town have any and they must be Regi­strated in the Town Clerks Books K. C. 2 Par. 3. Act. 11..

Before the Reformation there was another kind of holding in Scotland, which was of mortified Lands, granted to the Church, and the only Reddendo, was prayers, and supplications, in be­half of the Mortifiers.

Title V. Of the Casualities, due to the Superiour.

THe Feu being thus Stated by the Superi­our, in the person of his Vassal, it will be fit in the next place, to consider, what right the Superior retains, and what Right the Vassal acquires by this constitution of the Fie.

The Superiour retains still dominium directum in the Feu, and the Vassal has only domi­num utile; and therefore the Superiour is still Infeft aswell as the Vassal; but the King needs not be Infeft; for he is Infeft jure Coronae, that is to say, his [Page 109] being King, is equivalent to an In­feftment.

The Superiour has different advantages, and Rights, ac­cording to the different maner of holdings, and there are some Rights and Casualities common to all holdings.

Ward-holdings, gives the Superiour a Right, to the meals, and duties of his Vassal Lands, during all the years that his Vassal is Minor; and this is properly called the casualitie of ward; but the Superiour, or his donatar, are obliged to enter­tain the Heir; if he have no other Feu, or Blench, Lands, and to uphold the house, parks, &c. in as good condition as they found them; and must find caution for that effect K. J. 4. Par. 3. Act 25. K. Ja. 5. Par. 4. Act 15..

[Page 110]If the Vassal sells, or dispones the half of his ward-lands, to any except his appearand Heir, who is alioque successionae, without the consent of his Superiour, the whole ward-Lands fall to the Superiour, for ever; and this we call Stat: Rob. 3. cap. 19. Re­cognition, which is introduced to punish the ingratitude of the Vassal, who should not have disponed the Superiours Lands, without his own consent; and to shun this, the Vassal in ward-Lands gets the Superiours confirmation, be­fore he takes infeftment; for if he takes infeftment before he be confirmed, the lands recognosce, as said is; except the seasin be null in it self; since the Vassal showes suffi­ciently his ingratitude by the very taking of the Infeftment: [Page 111] And though the Vassal at first did not sell the half without the Superiours consent; yet, if he thereafter sells as much as will extend to more than the half of the Feu, the first huyer will likewise loose his Right, if it was not Confirmed before he took infeftment.

Not onely a Confirma­tion, or Novodamus, (if it express Recognition) but the Superiours accepting service, or pursuing for the casualities, are a passing from the Recog­nition; because, they infer the Superiours acknowledgement of the Vassals Right.

Recognition takes place in taxt-ward, as well as simple­ward, but in no other manner of holding; except the same be expresly provided in the [Page 112] Vassals Charter, for ward-holding, is presumed to be the only proper Feudal Right.

If the Vassal denyeth the Su­periour, he losses his Feu, and this is called, disclamation Stat: Rob. 3. cap. 18. Reg: Majest. lib. 2. cap. 63. Par. 6. & 9.; but any probable ground of igno­rance will take off this Forfei­ture.

If the Vassal who holds Ward-Lands dyes, having an Heir unmarried, whether minor, or major, the Superiour gets the value of his Tocher; though he offer him not a Woman to be his Wife; but if the Superiour offer him his Equal, for a Wise, and he refuses to accept, (tho he never Marry any other per­son;) the superiour gets the double of his tocher, and one of these casualities is called [Page 113] the single Avail of the Marriage, and the other, the double A­vail of the Marriage; but the modification of this is referred to the Lords of Session, who con­sider still what was the Vassals free rent, all debts deduced, and the ordinarie modification is about two years rent, of the Vassals free Estate; even though the Heir was an Heretrix, and though there were moe Heirs Portioners, there will only one avail be due for them all.

Though this Casualitie of Marriage; be still due in all ward-holdings; yet they may be due by express paction in o­ther holdings, and there are many in Scotland, who hold their Lands Feu, cum maritagio; and in both cases, the Marriage is debitum fundi.

[Page 114]Though as to the casuality of ward, every Superiour has Right to the ward Lands hold­ing of himself where the Vassal holds ward-Lands, of moe Superiours; Yet the casualitie of Marriage falls only to the eldest Superiour; because there cannot be more Tochers than one; and he is the eldest Su­periour from whom the Vassal had the first Feu; but the King is still presumed to be the eldest Superiour; because, all Feus originally flowed from him.

It is thought that the Reason why this Casualitie is due, was, because it was not just, that the Vassal should bring in a stranger to be Mistress of the Feu, without the Superiours consent; for els he might choice a Wife [Page 115] out of a Family that were an enemy to the Superiour; but I rather think, that both ward, and Marriage, proceeded from an express paction, betwixt King Malcome Kenmore and his Subjects, when he first Feued out the whole Lands of Scot­land, amongst them; as is to be seen in the first of his Statu­tes Leg. Mal. cap. 1▪.

The special dutie arising to the Superiour in a Feu holding, is, that the Superiour gets a yearly Feu dutie payed to him, and if no part of this Feu duty be payed for two years, even though the whole was offered; or though the Vassal was minor, then the Vassal looses his Feu, ob non solutum Canonem; for the Feu duty, is called Canon; and if this provision be exprest [Page 116] in his charter, he will not be allowed to purge this irritancy, by offering the bygones at the Barr; but though this provision be not exprest in the charter, yet the feu will be annulled for not payment of the Feu-dutie, by an express act of parliament K. J. 6. Par. 15. act 226.; but the Vassal in that case will be allowed to purge at the bar, and the reason of this diffe­rence is; because the express paction is thought a stronger Tye than the meer statute.

A clause irritant in Our Law, signifies any provision, which makes a penalty to be incurred, and the Obligation to be null for the future; as here, where the Superiour gives out his Feu upon express condition, that if the Feu-dutie be not payed, the Feu shall be null, and reduceable, and a clause resolutive, is a pro­vision, [Page 117] whereby the Contract to which it is assixt, is for not per­formance, declared to have been null from the beginning.

The Casualities that are due, by all manner of holdings, and which arise from the very na­ture of the feu, without any ex­press paction, are None-entry, Re­lief, and Liferent Escheate.

None-entry, is a casuality whereby the Superiour has right to the Meals and Duties of the Lands, when there is not a Vas­sal actually entered to him, and the reason why this is due to him, is, because, he having given out his Feu to his Vassal or service, when there is no actual Vassal entered, the Law allowes him to have recourse to his own Feu, that he may therewith provide himself [Page 118] with a Vassal, who may serve him; but though the full Rents of the Lands be due to the Su­periour, from the very time that he cites his Vassal, to hear, and see, it found and declared, that the Land is in None-entrie; yet before that citation, the Su­periour gets onely the retoured duties; and the reason of the difference is; because after ci­tation, there is a greater con­tempt than before, and so is to be more severely punished.

For understanding which retour dutie, it is fit to know, that there was of old, a gene­ral valuation of all the Lands of Scotland, but thereafter▪ there was a new valuation, the first whereof is called the old, and the second, the new Extent, and both are called the Retour duty, [Page 119] because they are exprest in the Retour, (or Return) that is made to the Chancellary, when an Heir is served; but both are very far below the Value, to which Lands are now improved, though in Our Law, the new extent be constructed to be the Value.

But in an infeftment of annual­rent, the whole annualrent is due, as well before declarator, as after; because the annualrent is the retoure dutie, it being retoured, valere seipsum; and that is called an infeftment of an­nualrent, when the Vassal is not infeft in particular lands; but is infeft in an yearly annuity of money, to be payed out of the lands, as for instance, if a man should be infeft in the sum of five hundred merks yearly, [Page 120] to be payable out of any particular Lands, being worth 5000. merks yearly, how soon the Vassal who had right to the 500. merks dyed, the Superiour would have right to the whole 500 merks yearly, until the Heir of the Vassal be entered. vide infra Tit. Servituds, § annualrents.

There is no Nonentry due in Burgage Lands; because the Burgh it self is Vassal, and never dyes, and so therefore, neither does the Burgh nor any private Burgess pay nonentrie, the duty payable by a Burgh, being onely by Watching and Warding.

When the Vassal enters, he pays an acknowledgment to the Superiour, which is called, re­lief, because its payed for reliv­ing [Page 121] his land out of the Superiors hands. It is debitum fundi, and affects not only the ground really, but the Vassal Personally, who takes out the precept for infefting himself; though he never takes infeftment there­upon.

The value of this Casua­lity varies, according to the nature of the holding, for in Blench and Feu holdings, it is only the double of the Feu or Blench duties; but in Ward­holdings, it is the full duty of the land; if the Superiour be in possession, the time of the Vassals entrie; but if the Superi­our was not in possession; though the Vassall was minor, or if the Vassall be major, before his Pre­decessor dye, then the Superiour gets only the retour dutie; and it [Page 122] is so far from being presumed to be remmitted by the Superi­ours entering his Vassal; that it is still exacted; though it be gifted with the other Ca­sualities.

For understanding Life-rent Escheates, it is fit to know; that when any man does not pay a debt, or perform a deed conform to his Obligation, his Obligation is Registrated; if it carry a consent to the Registrati­on in the body of it; or if it do not, there must be a sen­tence recovered, and upon that Registrated writ, or decreet, (for a Registrated writ is a decreet in the Construction of Law) there will be Letters of horning raised, and the Partie will be charged, and if he pay not within the dayes allowed by [Page 123] the charge, he will be denounced Rebel, and put to the Horn, and from the very day of the denounciation, all his move­ables falls to the King by a casua­litie, which is called, single E­scheate; but now single Escheates fall likewise to Lords of Regali­ties, if the persons denounced live within a Regality, because the King has gifted all single escheates when he erected those Regalities.

If the Vassal continue year and day Rebel, without Relax­ing himself, (which Relaxa­tion is expede by Letters under the Kings signet, expresly or­daining him to be relaxed from the Rebellion;) then he is esteemed as Civilly dead; and consequently not being able to serve the Superiour, the Law [Page 124] gives the Superiour the meals and duties of his Feu, during all the dayes of the Vassals life; and this casuality is called Liferent Escheat; so that every Superiour aswell as the King, has right to the meals, and duties of the lands holden of himself K. J. 5. Par. 4. Act 32. if his Vassal was once infeft; and even though he was not infeft; if he was appearand Heir, and might have been infeft; for his lying out should not prejudge his Superiour; but if a man have right by disposition, whereupon no infeftment fol­lowed, the King only will have right to his Life-rent Es­cheate, as he has for the same reason to the Manses and Gleebs of Ministers, when they are Rebells; since they are not infeft in these; but all heritable and Life-rent Rights, requiring [Page 125] no infeftment of their own na­ture, such as a terce, and Life­rent-tacks fall not to the King, and the Life-rent tacks fall to the Master of the ground, and the Life-rent by Terce pertains to the Superiour during the Life-renters Lifetime K. J. 6. Par. 22. Act 15..

This Life-rent Escheate com­prehends only Rights, to which the Vassal himself had right for his Lifetime; for else it will fall under single Escheate; ( single Escheates comprehending every thing that is not a Life-rent Escheate;) and therefore, if the Superiour having right to the Vassals Liferent Escheate, become Rebel himself, the Vassals Liferent Escheate will fall under the Superiours single Es­cheate, for the Superiour had not right to those meals and [Page 126] duties during all the dayes of his own Lifetime; and so it could not fall under his Life­rent, and the like, does for the same reason hold in all such as have assignations to Liferents, or to Liferent Es­cheats, or to Tacks for any definit number of years, few or many.

The Superiour has also right to the Sub-Vassals Liferent Es­cheate, which falls after the Vassals denounciation, for by the denounciation of the immediate Vassal, the Superiour comes in his place; and so has right to the sub-Vassals Liferent.

The Liferent Escheate falls by the Rebellion, that is to say, by the denounciation; and the year and day, is given only [Page 127] to the Rebell to relax himself, so that if he relax not within that time, his Liferent will fall from the denounciation.

In competition betwixt the Superiour of the Rebell, and the Rebells Creditors, these Rules are observed in our decisions.

Primo, No Legal Dili­gence, nor Voluntar right for pay­ment of any debt contracted, after Rebellion, will prejudge the Superiour; for else after a Vassal were at the horn, he might fraudulently contract debt to prejudge the Superiour.

Secundo, If the debt was prior to the denounciation, no voluntar infeftment will prejudge the Superiour; except the Rebel was obliged prior to the Rebellion, [Page 128] to grant that infeftment, and that the infeftment it self was expede within year and day of the denounciation.

Tertio, Though Legal Dili­gence be more favourable then voluntar rights; because there is less collusion, yet no legal dil­ligence will be preferred to the Superiour; except it was led for a debt prior to the denoun­ciation, and was compleated by infeftment, or charge, with­in year and day, thereof; al­beit the said Legal diligence was deduced after the denounciati­on.

Though this be the course in competitions, quo ad liferent Escheates; yet actual payment made, or diligences done to, or by Creditors for payment of [Page 129] debts, prior to the Rebellion, or the commission of crimes, will be preferred, to the donator; if these Rights or Diligences be compleated before declarator, which we owe rather to the benignity of our Kings, than to the Nature of these Rights, since there is jus questitum fisco, by the denounciation.

Liferent Escheates is proper to all kinds of holding; except Burgage, and mortification; for the Vassal being a Societie or Incorporation dyes not, and so can have no liferent Escheate; and albeit the administrators were denounced for debts due by the Incorporation; yet that is still presumed to be their Negligence, which ought not to prejudge the Societie:

For compleating this Casualitie [Page 128] [...] [Page 129] [...] [Page 128] [...] [Page 129] [...] [Page 130] a general Declarator must be raised at the Superiour or Dona­tors instance, to hear and see it found and declared, that the Vassal was orderly denounced Rebel, and has continued at the Horn year and day. And in a competition betwixt Donators, the last gift if first declared, will be preferred.

If the gift be taken to the be­hoove of the rebell, it is null, and is presumed to be to his be­hoove, if he or his Family be suffered to stay in possession.

The last Priviledge of the Superiour is, that he may force his Vassal to exhite his Evidents, to the end he may know what is the nature of the holding, and in what he is lyable to his Supe­riour, which proceeds ordi­narly by an Action of Improba­tion.

Title VI. Of the Right which the Vassal acquires by getting the Feu.

THE Vassal by getting the Feu settled in his Person, by Charter and Seasin, as said is, has right to all Hou­ses, Castles, Towers, (but not Fortalices;) Woods, and o­ther things that are above ground of the Lands expresly disponed; and to Coals, Lime­stone, and other things with­in ground, and to whatever has been possessed, as part and pertinent of the Land past memo­rie of Man: But there are some things which passe not under the general dispositive words, and require a special Disposition, which belong to the King, [Page 132] in an eminent way, and are cal­led therefore Regalia, and are not presumed to have been disponed by his Majestie, or any other Superiour; except they were specially mentioned, such as are all Iurisdictions, Forrests, Salmond-fishings, Treasures hid within the ground, and Gold, Silver, and Fine-lead; for other Mines, such as Iron, Copper, &c. belong to the Vassal.

If Lands be erected in a Bar­rony by the King, then though the lands lye discontiguously, one seasin will serve for them all, because, Barrony implyes an u­nion.

This erecting them in a Barrony, will likewise carry a right to Iurisdictions, and Courts, Fortalices, Forrests, hun­ting of Deer, and Ports, with [Page 133] their small Customes, grant­ed by the King, for upholding these Ports, Milnes, Salmond­fishings, &c. because; Barronia est nomen universitatis, and pos­session of any part of a Barrony is repute possession of the whole; But Mynes of Gold, and Silver, K. J. [...]. Par. 1. act 12. Treasures, and goods confiscate, are not car­ried with the Barrony.

The Heritor has also pow­er to set Tacks, remove, and in-put Tennents, as a conse­quence of his property.

A Tack is a Location, or con­tract, whereby the use of any thing is set to the Tacksman, for a certain hyre, and in Our Law it requires necessarly, that the terms of the Entry, and the Ish, must be exprest, that is to say, when it should begine and end, and it must bear a [Page 134] particular dutie, else it is null; and if it be a valid Tack, that is to say, if Write be adhibit, ( verbal Tacks being onely valid for one year) to the thing set, the Contracters names, Tack­duty, Ish, and Entry, clearly therein exprest, and cloathed with possession, it will defend the poor Tacksman, against any Buyer *; and even against ‡ K. J. 2. Par. 6. Act 17 the King and his Donators, when they succeed by forfeiture, which was introduced in favours of poor Tennents, for encourag­ing them to improve the land; but it will not defend against a Superiour of ward lands, for the ward, &c. though by Act of Parliament, the Superiour be obliged, to continue them in their possession till the next term of Whitsonday K. J. 4. Par. 3. act 26..

Albeit Tacks have not all [Page 135] the solemnities foresaid; yet they are valid against the Granter and his Heirs.

Tennents cannot assign their Tacks; except they be Liferent Tacks; or that the Tack bear a power to assign; but they may be comprysed, or adjudged; and if the Master suffer the Tacksman to continue after the Tack is expyred, he will be obliged to pay no more than he payed formerly during the Tack; and this is called in Our Law, the benefite of a tacite Relocation, that is to say, both the Setter and the Tacks­man, are presumed to design to continue the Tack upon the former terms, till the Tennent be warned.

If the Tack be granted to [Page 136] sub-tennents; then the Tacks­man may set a sub-tack, which will be as valid as the principal Tack, if cled with possession.

Rentals are also a kind of Tacks; but more favourable and easie; because the Rental­ler and his Predecessors have been Ancient Possessors, and kindly Tennents, and he payes a Grassume, or acknowledge­ment at his entrie, and yet they last no longer than for a year; if there be no time exprest; and if they be granted to a man and his Heirs, they last only to the first Heir; for else they behoved for ever to belong to the Heirs; and so would want an Ish; but no Tack is accounted a Rental; except it be in write, and the write bear the same.

[Page 137] Rentals cannot be assigned, except that power be granted in the Rental; and if the Rentaler assign, he looses his Rental; though a Tacksman Forfeits not his Right, by assigning it, the assignation being only null.

When the years of the tack expyre; or though there be no Tack; yet the Master cannot Summarly remove his Tennent, or Possessor except from Life­rented Lands, and Houses, or Towers, and Fortalices, and vitious Possessors whom he can remove by a sum­monds on six days; but in all other cases he must warn him, 40 dayes, before the term of Whitsonday; tho the term at which he were to remove, by paction, were Martinmass, or [Page 138] Candlemass; which warning must be executed, that is to say, intimated personally to the Tennent, and upon the ground of the lands; and at the Parish Kirk, immediately after Ser­mon, and if he then refuses, he must be persued to remove upon six dayes, and after this citation, the Master will get against him violent profits; that is to say, the double of the avail of the Tenement within Burgh, and the highest advan­tages that the Heritor could have got, if the Tennent posses­sed lands, in the Countrey; nor will the Tennent be allow­ed to defend against this re­moving; till he find caution to pay the violent profits Q. Ma Par. 6. Act 39..

The Master has likewise a Tacit Hypotheque in the fruits of [Page 129] the ground, which he sets to his Tennent, in so far as con­cerns a years dutie, that is to say, they are impignorat by the Law, for that years dutie, and he will be preferred either to a Creditor, who has done diligence, or to a stranger who has bought them; though in a publick mercat: And a Lands-Lord within Burgh, has a tacit hypo­theque in all the goods brought in to his House, by his Tennent, which he may retain, a [...], and while he be payed of his years rent.

Title VII. Of Transmission of Rights, by Con­firmation, and of the difference betwixt Base, and Publick In­feftments.

THE Fie being thus Established in the Vas­sals person, the same may be Transmitted, either to universal, or singular Successors, the first is properly called Succession, which shall be handled in the third-Book. Transmission of Rights, to singular Successors, is voluntar by dispo­sition, and assignation, or ne­cessar by apprysing, and adjudi­cation, and Consiscation, when they are forefaulted for crimes, &c.

[Page 141]If the Vassal sells the Land, the Superiour is not obliged to receive the Sub-Vassal except he pleases, though the charter bear, to him and his assignies; and if he receive him, there is in Law, a years rent due to the Superiour, as an acknowledge­ment for changing his Vassal.

Lands are disponed, either to be holden of the disponers Superiour, and that is called a publick Infeftment; because, it is presumed it will be publick­ly known, being holden of the Superiour; and it is likewise called an Infeftment, a me; because, the disponer gives it to be holden a me, de Superiore meo, and this Infeftment is null untill it be confirmed K. J. 6. Par. 5. Act 66. by the Superiour, which is done by a Charter of Confirmation, wherein [Page 142] the Superiour narrates the Vassals Charter, and subjoyns thereto his own Confirmation or Rati­fication of it, and the last right being first confirmed is still preferred.

Sometimes also the Vas­sal Dispones Lands to be holden of himself, and this is called, a base infeftment, and has been allowed by Our Law, contrare to the principles of the Feudal Law, in Favours of Creditors, who getting right for payment of their debts, were un­willing to be at the expences to get a Confirmation from the Su­periour, and this is called, an infeftment, de me; because, the Disponer gives them tenendas de me, & successoribus meis.

These base infeftments being [Page 143] cloathed with possession, are as perfite, and valid, as a publick in­feftment; for possession, is to an infeftment to be holden of the Disponer, the same thing that confirmation is to an infeftment to be holden of the Superiour; and therefore, as in a Competition betwixt two infeftments of the same Land, to be holden of the Superiour, the first confirma­tion would be preferred, it be­ing a general rule in Law, that amongst Rights of equal per­fection, prior in tempore est potior in jure; so if a base infeftment be cloathed with possession before the publick infeftment be confir­med, the base infeftment will be preferred; though it was granted after the publick infeft­ment.

For the better understand­ing [Page 144] of the nature of base infeft­ments, it is fit to know, that possession is in Law natural, or Ci­vil, that is Natural possession, by which a man is Naturally, and Corporally in possession, as by la­bouring of the ground; but be­cause sometimes men could not attain to the Natural possession, for cloathing their Right, therefore the Law was forced to allow another possession by the mind, as that was by the body, and this is called, Civil possession; because it is allowed, and introduced by the Civil Law, of which there are many kinds in Scotland; As,

Primo, The obtaining Decreets for Meals and Duties, and even citation upon an heri­table Right.

Secundo, Payment of annual­rent, [Page 145] by the debitor to the Creditor who has infeftment of annual-rent.

Tertio, If a man be infeft in lands, and for warrandice of these lands be infeft in other lands, possession of the prin­cipal lands, is reputed in the construction of Law, possession of the warrandice lands.

Quarto, If a Woman be in­feft by her Husband in a life­rent, the Husbands possession is accounted the Wifes possession.

Quinto, If a Man dispone lands, reserving his own liferent, the Liferenters possession is accoun­ted the Fiars possession; and a base infeftment is said to be cloathed with possession; if he who is infeft hath attained either to Natural or Civil possession; for the Law cannot punish a Man for not apprehending possession, who [Page 146] could not apprehend it; and for the same reason, if the time of Entrie was not come, he who is infeft by a base infeft­ment, will be preferred in that case, as if he were in possession; and the reason of all this is, because Our Law considering, that base infeftments were clan­destinely made, betwixt confi­dent, and conjunct persons, to the ruine of lawful Credi­tors, who could not know the same; there being then no Register of Seasins; it therefore declared all base infeftments to be simulat, which were not cloathed with possession; and therefore before the terme, at which he who got the base in­feftment could enter to the possession, there could be no Simulation, nor fraude, in no partie; and in this [Page 147] the Law considers much the interest of lawful Cre­ditors, by sustaining that kind of possession in their favours, which would not be sustained in favours of near Relations; or where there is no Onerous cause; and thus a base Infeftment given be the Father, to his own Son, will not be cloathed with pos­session, by the reservation of the Fathers liferent, though the reservation of the Fa­thers Liferent would cloath a base infeftment granted by him to a lawful Creditor; and the Husbands possession is accounted the Wifes possession, in so farr as concerns her principal Ioynture; but not in so far as concerns her additional Ioynture, in a competition betwixt her and her Husbands lawful Creditors.

Sometimes likewise, for the [Page 148] more security a base infeftment, which is given to be holden of the Disponer, will be confirmed by the Superiour; but that Con­firmation does not make it a publick infeftment; for no in­feftment can be called a publick infeftment; but that which is to be holden of the Superiour; but the use of that Confirmation is, that after the Superiour has confirmed voluntarly the sub-Vassals Right, he thereby ac­knowledges his Right; and consequently, can seek no Ca­suality, which aryses upon want of the Superiours consent, such as Forfeiture, or Recogniti­on; But because the Disponer is still Vassal, therefore his Supe­riour will still have right to the Rents of the Lands, by his life­rent Escheate, and to Wards, and None-entries by his death; but [Page 149] if the Superiour enter the sub-Vassal onely upon a Charge, (this being no voluntar act of his,) that does not cut him off from those casualities.

Sometimes likewise, the Seller resigns the Lands in favours of the Superiour, if the lands be sold to the Su­periour himself, which is called Resignatio ad Remanentiam; be­cause the Lands are resigned to remain with the Superiour, and in that case, the property is said to be Consolidate with the Superiority, that is to say, the Superiour returns to have all the right both of Property, and Superiority; nor needs he be infeft of new; because, as we formerly observed the Superiour stands still infeft aswell as the Vassal; but the Instrument of Resignation must be Registrat­ed [Page 150] in this case, as Seasins are in other cases, to put men in mala side to buy K. C. 2 Par. 2. Sess. 1. Act 3.

The other Resignation, is called Resignatio in favorem, which is when the Seller hav­ing sold his Feu to a third party, resigns the Feu in the Superiours hands, for new Infeftment to be given by the Superiour to that third partie.

The warrand of both these Resignations is a Pro­curatorie granted by the Seller, to a blank Person, (and this warrand is ordinarly in­serted in the disposition) im­powering him to resign the Feu in the Superiours hands; and this is called a Procuratory of Resignation; and the Symbols of the Resignation are, that it is to be made by Staff and Baston; and accordingly, the Procu­rator [Page 151] compears before the Superiour, and upon his Knee, holding a Staff or Pen at the one end, which the Superiour or any having power from him, holds by the other, he there resigns the Feu, either ad remanentiam, or in favorem, as said is; whereupon an instru­ment is taken by the Person in whose favours the Resignation is made, which is called the Instrument of Resignation; and thereafter the Person in whose Favours the Resignation is made, (if he be not the Superiour) is infeft, and his Seasin must be Registrated within 60. dayes, as said is.

The Resignation does not perfectly denude the Seller, untill Infeftment be taken upon it; and therefore the first Infeft­ment, upon a second Resignation [Page 152] will be preferred to him, who has but the second infeftment upon the first resignation; but yet the Lands will be in Non­entrie in the Superiours hand, after the resignation is made, untill the person in whose fa­vours it was made be infeft, for otherwayes the superiour would want a Vassal, since he could not call him Vassal who did resign his to be Vassal; And he had accepted of a resignation from him; nor is the Person in whose favours the resignation is made his Vassal; since he is not yet infeft; but yet the buyer has a personal action, against the Superiour, to force him to denude himself in his favours; since he has accepted the resignation; and he will likewise have an action of dam­nage and interest against the [Page 153] Superiour; if he accept a second Resignation, whereby a prior infeftment may be taken to his prejudice, and the Superiour gets all his Casualities, as Ward, Marriage, Liferent Escheat, &c. not by him in whose favours resignation is made; but by him who resigns, since he re­mains still Vassal till the other be infeft quoad the superiors ca­sualities.

Title VIII. Of Redeemable Rights.

ANother Considerable di­vision of Heritable rights with us, is that some are redeemable, and some irre­deemable.

Redeemable Rights, are these which return to the Disponer, upon payment of the [Page 154] sum, for which these Rights are granted; and are so called; because they may be redeemed by the Disponer; and they are either Wadsets, infeftments of an­nualrents, or infeftments for relief.

A Wadset, is a right where­by lands are impignorated or pledged for security of a special sum, which passes by infeft­ment, (like other real Rights) in the terms of alienation or disposition; and the Disponer does secure himself by getting a reversion from the Buyer, wherein he grants and declares the Lands redeemable from him, upon payment of the sum then delivered, and of the an­nualrent thereof, which is pactum de retrovendendo; and expresses the place and time when it is to be delivered, and in whose hands it is to be consigned; in case the [Page 155] receiver of the Wadset, (who is called the Wadsetter) refuse to accept his Money.

These Reversions, being a­gainst the nature of property, and depending upon the meer a­greement of Parties, are to be most strictly observed; and are strictissimi juris; so that they are not extended to Heirs or Assigneys; except they be ex­prest, and must be fulfilled in the very terms; and it is not enough that they be fulfilled in equipollent terms: But after an order of redemption is used; that is, after the Granter of the Wad­set has duely premonished the Wadsetter, and consigned the sums due by the Wadsetter, it may be assigned; and though the reversion bears that premoni­tion be made at the Parish Church, it will be sustained if [Page 156] it be made personally to the Wadsetter, for that is a surer certioration.

Reversions, albeit of their own nature they are personall binding, onely the Granter and his Heirs, yet they are real rights by our Statutes, and affect singular K. J. 3. Par. 5. Act▪ 28. Successours.

They and all Bands to make reversions, or [...]ikes to reversions, must be registrated within 60. dayes in the same Register with Seasins; for else a singular Successour is not obliged to re­gard them K. J. 6. Par. 22. Act 16.; so that if any buy the Land irredeemably, and compleat his right, he will be preferred; but they are still va­lid against the Disponer with­out registration.

When the Granter of the Wadset, is to use an Order of redemption, he must premonish [Page 157] the Wadsetter to compear, (and take instruments thereupon, cal­led, an instrument of premonition) to receive payment of the sumes due to him; and at the time and place appointed by the reversion, offer being made of the Money; if the Wadsetter refuses voluntarly to renounce, and to accept his mo­ney, it is consigned in the hands of the person designed in the reversion, or if no person be de­signed, it may be consigned in any responsal Mans hand; but there must be a paper taken under the Consignatars hand, ac­knowledging that it was consig­ned in his hand; for though an instrument under a Notars hand, proves that all this order of redemption was used; yet it will not prove the receipt of a sum against the Consignatar.

[Page 158]If the Wadsetter receive his Money, and renounce voluntarly, this is called, a voluntar redemp­tion; But, because though re­nounciations be sufficient to ex­tinguish, they are not sufficient to transmit a right; therefore, if the Wadset was given to be holden of the Disponer, the Wadsetter must resign ad re­mantiam, in the Disponers hands as his Superiour; and thereaf­ter the Disponer needs not to be infeft of new; as no Superiour needs; but if the Wadset be given to be holden of the Su­periour; then the Disponer uses to take a Letter of regress, whereby the Superiour obliges him to receive him back to be his Vassal, when he shall redeem his own lands; for other­wayes after the Wadsetter is seased, the Superiour is not [Page 159] obliged to receive him back.

If the Wadsetter refuses to re­nounce after the Order is used, the Lords will force him to re­nounce, and declare the Lands re­deemed, by a Process, called a Declarator of Redemption; af­ter which Decreet is obtained, the Lands are redeemed, and belong to the Redeemer; and the Wadsetter will upon a simple charge of horning force the Con­signatar to deliver him up the money.

The user of the Order of Re­demption, may pass from it at any time before Declarator; and therefore the sumes for which the Wadset was granted, are still heritable before Declarator; but after that they are move­able, and fall to Executors; ex­cept [Page 160] the Declarator be obtained after the Wadsetters death, in which case they remain heri­table; And though the Wad­setter require his Money, he may pass from his requisition, either directly by a clear Decla­ration that he passes from it, or indirectly by intrometting with the duties of the Wadset lands, or by taking annual-rent for termes subsequent to the requi­sition.

Wadsets are either Proper, or Improper.

Proper Wadsets, are these, wherein the Wadsetter takes his hazard of the rents of the land for the satisfaction of his annual­rent; and payes himself all publick burdens. Improper Wad­sets, are these, wherein the Granter of the Wadset payes the publick burdens, and the receiver [Page 161] is at no hazard, but has his an­nualrent secure. And if a Wadset be taken, so, that the Wadsetter is to have more than his an­nual-rent; and yet the Granter is to pay the publick burdens, this is accounted Usury by Our Law; the punishment where­of is confiscation of moveables loos­ing of the principal sum and anulling the usury, contract, or paction K. J. 6. Par. 14. act 222. Par. 15. act 247.; and by a late Statute, If the Debitor offers security for the Money, and craves possession, the Wadsetter must either quit his possession, or restrict himself to his annualrent King Char. 2. par. 1. Act 62.. And if a Man impignorat his Lands, or Bands, with expresse condition, that if the Money be not payed at a precise day, they shall not be there­after redeemable: The Law re­probates this unjust advantage, called, pactum legis commissoriae [Page 162] in pignoribus; and will allow the Money to be offered at the Barr; or they will allow a short time before Extracting of the Decreet for payment of it.

Taking of annualrent having been discharged by the Cannon Law, men did buy annualrents out of other mens lands, which was the origin of our present infeft­ments of annualrent, and continues still frequent; by which if men resolve not to rest on the personal security of the borrower, they take him also obliged to infeft them in a yearly an­nualrent, payable out of his Lands correspondent to the sum lent; but if they exceed the ordinarly annualrent allowed by Law, it will infer usury; and so they have a double security, one personal against the borrower for payment, and an­other [Page 163] real against the ground, it being debitum fundi; for which they may poynd any part of the ground; as also they have good action against the Intrometters with the duties of the lands, out of which there annualrents are payable; though they cannot poynd or exact from the tennents any more then they owe to their master K. J. 3▪ Par. 5. act 37..

These annualrents require a special seasin, like Wadsets, and other real rights; the sym­bols whereof, if the annualrent be payable in money, is a penney of money; but if it be payable in Victual, it is a parcel of Victual.

This is singular in infeftment of annualrent, that apprysing, thereupon will be preferred to all prior apprysing, quoad the [Page 164] bygones, of the annualrent, if the infeftment of annualrent was prior to those apprysings to which the apprysing will be drawn back, and preferred to any interveening right, which pri­viledge is continued in the late Act of Parliament, concer­ning Debitor and Creditor K. C. 2 Par. 1. Act▪ 62..

These infeftments of annualrent, being properly granted for se­curity of sums are extinguished not only by resignations, but by renounciations; and even by intromission with as much as might pay the principal sum, which intromission is probable by witness, whether the Rent be victual or money, and there­fore singular Successors buying infeftments of annualrent, are not secure by any register but must rest on the warran­dice of the Seller,

[Page 165] Infeftments of relief, are these, which are granted by a debitor to his creditor, for security of sums owing to him, upon which the creditor cannot enter to possession, till he be distressed, and when the sum is payed, the right becomes absolutely null, as being but a temporarie right, and so the debitor who granted the right, needs not be of new infeft, but his for­mer right revives.

Title IX. Of SERVITUDES.

THE Nature and Con­stitution of Propertie, and real Rights, be­ing explained in the forego­ing Titles. We shall now treat briefly of Servitudes; which [Page 166] are Burdens, affecting Property and Rights.

Servitudes are either Real, Personal, or Mixt.

Personal Servitude, is in de­suetude amongst Christians; and therefore is not proper to be considered here. Real servitude is whereby one Mans Property, or Ground is affected with some burden, for the use and be­hoove of another Man; which are devided in Rural servitudes, and Citie servitudes.

Rural Servitudes, are Iter, which is, a power of going through our neighbours land; Actus, which is a power of driving Carts, or Waines; Via, being the priviledge of having high wayes in our neighbours ground; and Aquae-ductus, which is a power and priviledge to draw Water alongst their ground [Page 167] for watering of our own. Thus Via, includes Iter, and Actus, as the lesser servitudes; so he that has a Via, has also power to drive carts and waines, and to walk himself through the Ground burdened with the Servitude.

The City servitudes, called, servitutes Urb [...]nae, are chiefly five.

The first, is Oneris ferendi, which is a priviledge, whereby one who has a house in the City, can force the Proprietar who has a house below his, to bear the burden of his house; and he may force the Owner of the ser­vient tenement to repair it, and make it fit for supporting the dominant tenement, contrare to the common nature of servitudes.

Secundo, Tigni immittendi, which is the priviledge of [Page 168] forceing our neighbour to receive into his house the jests of ours.

Tertio, Stillicidii, vel fluminis, which, is whereby our neighbor is obliged to receive the drops which falls from our house, un­der which, is likewise com­prehended the priviledge of carrying away our Water by sinks and channels.

Quarto, Non officiendi Lumi­nibus, whereby he can do no­thing that can prejudge our Lights, or prospect.

Quinto, Altius non tollendi, whereby our Neighbour can­not raise his house higher, to prejudge the lights of the domi­nant Tenement.

By Our Law, servitudes may be constitute by write, with­out any seasin; because they [Page 169] are incorporeal rights; but though a servitude meerly established by write, be sufficient against the granter; yet they are not valid against singular Successors; except that right be cloathed with possession, which compleats the servitude and makes it a real right; and they may be likewise established by pre­scription without any write, from him who has the servient Tenement; though he who is to acquire the servitude by prescription, must have some right in his person, either of a special concession, or else must prescrive it, as part and pertinent of his land.

The ordinary Servitudes su­peradded by us, to these of the Civil Law, are the servitudes of casting Fail and Divot, common [Page 170] pasturage, and Multures.

Common pasturage, is a right of pasturing the Goods and Cattel of the dominant tenement, upon the ground of the servient, which is constituted frequent­ly by a Charter, containing the clause of common pasturage; and sometimes by a personal Obligement, cloathed with possession; but albeit it be inde­finite, yet it can reach no fur­ther than to the proportion of Goods of the Dominant tenement, which they keep and fod­der in Winter; which is done by sowming and Rowming, that is to say, the determining the proportion of goods belonging to each Dominant tenement, according to the several Rowms and rent thereof.

Common Pasturage in our Law, [Page 171] does ordinarly comprehend all the lesser servitudes; such as the casting of Faill and Divots, presumptively onely; for the one may be possest without the other; nor will common Pa­sturage inferr a servitude of cast­ing of fail and divots if he who possessed the Com­mon Pasturage was interrupted as to the casting of fail and divot.

Mills, are inter Regalia, and require therefore a special Seasin; the Symbols whereof are clap and happer; but if the mill be in a Barrony transit cum universitate.

Mills, are ordinarly dis­pond with multers and Sequels; the Multurs are a quantitie of corn, payable to the Heritor of [Page 172] the mill for grinding. The knaveship, Lok, and Bannock, are a small quantitie payable to the servants for their paines.

These quantities, that are payed by those that are thirled, are called, Insucken multurs, and those quantities, that are payed by such as come volun­tarly, are called outsucken mul­turs.

Thirlages, are constitute by write, or by prescription.

The wayes of constituting thirlage by write, are these;

First, When a Master thirles his own Tennents, to his own Mill; in which case ordinar­ly he deminishes the rent of his land, in contemplation of what they are to pay to the Mill, [Page 173] for grinding their Corns, which he does by an act of his own Court.

Secundo, When an Heritor sells his lands, to be holden of himself, and thirles his Vassal to his Mill; in which case he sells so much the cheaper, and so the multures are just.

Tertio, When the Heritor of a Mill, dispons his Mill, with the multure of his own Lands; in which case the multures are al­so just; because he gets so much the more for his mill; and so this servitude is not so odious as it is believed to be.

Quarto, If a man dispones the mill of a Barrony, cum mul­turis, or cum astrictis multuris; in either of these cases, he thereby astricts his whole Bar­rony; though not formerly a­stricted; but if he dispone the [Page 174] Mill of the Barrony, cum multu­ris solitis & consuetis; he i [...] thereby understood to hav [...] thirled onely what was formerl [...] thirled.

If the thirlage bears omni­grana crescentia, all the Corn growing upon the Land wil [...] be thirled, with deduction onely of seed, and Horse corn, and th [...] ferme; except it be carryed to another Mill, for it is presum­ed ferms must be sold.

Quinto, When invecta & il­lata are thirled, all Corns which thole Fire and Water withi [...] the astriction, must pay multur [...] though they come not to th [...] Mill; but being made in Malt are thereafter carryed abroa [...] out of the thirle.

The way of constituting thirlage by prescription, is imme­moral, [Page 175] or 40. years possession, by vertue of some title; such as a Decreet, though in ab­sence; and even when the Ma­ster is not called; and any Act of a Barron court, though made onely by a Bailie, without a special warrand from the Heri­tor; and though the coming to a Mill, past all memorie, does not astrict the Comers for the future; it being a general rule in all servitudes, that, ea quae sunt merae facultatis non prescribun­tur; yet in mills of the Kings property, immemorial possession, constitutes a thirlage; and if Men likewise pay dry multures, that is to say, such a quantity, whether they come to grind or not, for 40. years; they will be thereby astricted; for it is not presumable they would have payed dry multure, for so long [Page 176] a time except they had been thirled.

If the quantity to be payed, be not determined in Write, it is regulated by the use of payment for 40. years.

Those who are thirled, are also obliged to maintain the mill in its dammes, water-gangs, and to bring home its Mill­stones.

If such as are thirled, bring not their Corns, they are per­sued by an action called, abstra­cted multures.

There are two Rules to be observed in all servitudes.

Primo, Res sua nemina servit, no man can have a servitude on what is his own; and therefore if the Land on which we have a servitude be­come ours, the servitude is ex­tinguished.

[Page 177] Secundo, When we have a servitude on any other land, this servitude affects every foot of that land, unaquaeque gleba servit; but this is to be taken civiliter, & non judaice; so that it must be reasonably used; And thus, if we Fen out some Acres, with priviledge to the Feuer to cast Faill and Divot upon our Moor, for main­taining his houses; though in strict Law, every part of the Moor is affected with the ser­vitude; yet the Lords will al­low any man to Tile and Sow his own Moor, leaving such a proportion, as may maintain these houses.

Mixt Servitudes are partly real, and partly personal; and by the Civil Law are divided in usu fruct, use, and habi­tation.

[Page 178] Usus-fructus is called liferent in Our Law; which is a right to use and dispose upon any thing during life, the substance thereof being preserved.

Use and habitation were re­stricted to the naked use of the Liferenter; whereby his power of disposing and making profit of the thing liferented was restrain­ed; and are not in use with us.

Liferents are either consti­tute by paction; or by Law; liferents by paction, are either by reservation; as when a Fiar denuds himself of the Fie in fav­ours of another, reserving his own liferent; or by a new constitution; as when the Fiar dispons his lands to another, during all the dayes of his life; the first needs no infeftment; but the second does; else it is [Page 179] not valid against singular Suc­cessors; but the liferenter be­ing infeft, transmits his right to any by assignation without infeftment; for being a servi­tude and personal right, it nei­ther needs, nor can admit of a subaltern infeftment.

A Liferenter also by reserva­tion, may enter the heirs of Vas­sals (though he cannot receive singular Successors) if he was himself infeft; but another liferenter cannot; and even a liferenter by reservation cannot enter those Vassals, if he was not once infeft; because he cannot transmit a right which he has not.

When moe persons are joyntly infeft, they are cal­led conjunct Fiars; but though a wife be a conjunct Fiar; yet [Page 180] her Fie lasts but during her life; and during her life, she may enter Vassals, and has right also to all the casualities, as other Fiars.

Liferents by Law, are the Terce, and the courtisie.

The Terce is a liferent of the third of all the tenements, wherein the husband dyed infeft, pro­vided be law to a wife, who is not excluded by express pa­ction; or is not provided to as much as will be eqvivalent to the Terce K. C. 2 Par. 3. Act 10.; which Terce is con­stituted by an inquest, who upon a brief out the Cbancellary, directed to the Sberriff, or other judge ordinary, doe serve her to a Terce; upon which service, the judge to whom the brief was directed without retouring it, divids the land betwixt the heir; and Relict, and ex­presses [Page 181] the marches in an instru­ment, and this is called to kenne her to her Terce; the marches being kenned by the instrument; and though the service gives her right to the meals and du­ties; yet she cannot remove tennents, till she be kenned, as said is, the kenning being equi­valent here to the seasin in lifrents.

This Brive contains two points; first, that the bear­er, was Lawful Wife, to the defunct and secundo; that he dyed infeft in such tenements, but if the Relict was holden and reput lawful Wife, in her Husbands life; no exception in the contrary will stop the service K. J. 4. Par. 6. Act 77..

There is no Terce in Burgage Lands, Feu duties, or other [Page 182] casualities, nor in reversions, tacks, nor Patronages.

The Courtisie, is a liferent, granted by Law, to him who married an Heritrix, of all her Heritage, and of that only; It needs neither seasin, nor other solemnity to its constitution; but is ipso jure, continued to him; if there were Children procreated of the Marriage, who were heard to cry; though the Mar­riage disolve within year and day.

All these Liferenters are ob­liged to find caution to pre­serve the thing liferented, and to leave it in as good condition as they found it, which is cal­led cautio usu-fructuaria; and they are also bound to Ali­ment the appearand Heir if he have not Aliundi, to Aliement himself K. J. 4 par. 3. Act 25..

[Page 183]If Liferenters survive Martin­mess; or if they die upon Mar­tinmess day, in the afternoon; their Executors will have right to the whole years rent, whether it be Land rent, or the rent of a mill; albeit the Conventional termes were after Martinmess; But if Liferenters labour the Lands themselves, their Exe­cutors will have right to the whole rent thereof, albeit they die before Martinmess.

Title X. Of TEYNDS.

TEynds Tyths or Tenths:, being a burden affecting Lands, fall in to be considered in this place.

Teynds are designed to be [Page 184] that special and liquid proportion, or quota of our Goods, and Rents lawfully acquired that is due to GOD, for main­taining His Service.

It seems Our Law has fol­lowed the opinion of those Di­vines, who think, that some proportion of our Goods is due by Divine right; for we say, that Teynds are the Spirituality of the Churches revenue; But that the proportion is not Iuris Di­vini; for we alter the proporti­on by special laws and customs; though for distinctions sake we call this proportion the Tenth.

By the Canon Law, they are divided into personal teynds, which arise out of the personal gaine and profites, that a Man has by his Trade; Predial teynds which aryse from the Na­tural Product of the Land [Page 185] that men possess. And mixt Teynds which arise from the profites, that men by their Personal industrie make out of their Lands.

They are likewise divided into Parsonage teynds, which are due to the Parson; and Viccarage teynds, which are due to the Viccars; And regularly all teynds are due to the Incum­bent, who serves the Cure; so that if the Incumbent be a Parson, he has a right to the Parsonage teynds; and if he be a Viccar, he has right to the Viccarage teynds.

The teynds of Corn, are cal­led Parsonage teynds, or decimae garbales; and the fifth boll of the free rent is still teynd with us; And all Land must pay teynd; except they be such as have been Feued out of old by [Page 186] Church men, before the Lateran Council, by which they were prohibited to alienat the teynds, and who had right both to stock and teynd; and where the teynds were never known to have been separated from the stock.

Some Monks likewise got particular exemptions from pay­ing teynds, for these Lands which they themselves did bring in, and cultivate; and with us the priviledges grant­ed to Temple lands, which be­longed of old to the Knights of St. Iohn, a Religious Order; and to the Monks of the Cisterian Or­der, are continued to those who have right to their Lands, with that Exemption: Manses, and Gleibs, are likewise free from payment of teynds.

Viccarage teynds, are called [Page 187] the small teynds with us; be­cause they are payable out of inconsiderable things, such as Lambs, Wool, Cheese, Eggs, &c. and they are said to be local; because they are payed accor­ding to the custome of the place; so that in the same Pa­rishes, some Heritors, will be lyable for Viccarage teynds of different kinds; for though no man can prescrive a liberty from payment of Parsonage [...]eynds, since the Lateran Council; yet, as 40. years possession is a suf­ficient right to a Minister, for Viccarage teynds; and as it does determine the Quota, as well as the species of Viccarage teynds; so by 40. years Freedom, the Heritour is secure in all time coming, from payment of Viccarage teynds.

When Popery was supprest, [Page 188] all the Lands belonging to Monks, and others, were an­nexed to the Crown, in anno 1587 K. J. 6. Par. 11. Act 29. but the teynds belonging to them were not annexed; these being acknowledged by Our Law, to be the Patrimony of the Church; and they are therefore called, the Spirituality of the Benefices.

The Monastries of old, hav­ing gotten several parish Churches mortified to them; whereby they had right to their Parsonages teynds; such as got those Monastries disponed to them, erected in their Fa­vours, became thereby to have right to other mens teynds; and great emulation as well as prejudice arising from mens not having right to lead their own teynds.

[Page 189] King Charles the first, did therefore prevaile with all the the saids Titulars of erection, to submit what should be payed them, as the price of the saids teynds; and His Majestie did determine, that the rate of all teynds, should be the fifth part of the constant rent; where the Stock and Teynd were accustomed to be set joynt­ly; but the fourth part onely where the teynds were usually set separate from the Stock; A fifth part being Deduced by the King in that case; because ordinarly Church­men used to draw too great a proportion; and this deduction is therefore called the Kings ease; as also, that the saids teynds being valued, should be bought at nine years purchase K. C. 1 Par. 1. Act 17. and 19. K. Ch. [...] Par. 1. Sess. 1. Act 61..

For Effectuating this determi­nation, [Page 190] the Parliament 1633. appointed some of their own number, to value the saids teynds, and after a process for valuation is raised, before these Commissioners, in which the Titular his Tacksman, and the Minister; are to be cited, the Heritor in the mean time gets the leading of his own teynds.

The probation is ofttimes allowed to both parties in this court; and where one party is preferred, it is called; the prerogative of probation; and is much contended for; and is thus regulated, viz. either the teynds are drawn ipsa corpora, by the Titular, or Tacksman; and then they have the sole probation allowed them, to prove what the teynds were worth. (They proving that they led seven years of 15. be­fore [Page 191] 1628;) or else they have Rental bolls payed them; & eo casu, they have the sole probation likewayes, they prov­ing 20. years possession of uplift­ing Rental bolls, condescend­ing upon quantitie and qualitie; or Tertio, the Heritors have Tacks of their own teynds, for payment of Silver dutie; and then there is joynt prabation allowed both to Heritor, and Titular.

Ecclesiastick Persons, such as Bishops, Parsons, &c. Sub­mitted only what they were not in possession of; and therefore, there can be no valuation led of any teynds, Parsonage, or Viccarage which they were actually in pos­session of; but by a Letter from His Majestie thereafter in anno 1634; It is declared, that; if there [Page 192] teynds be set to Tacksman, they may be valued during the tack; whereas the teynds they were in possession of cannot; though teynds holden of Collegiat Kirks may be valued; and so may be bought and sold.

The Burrows are onely decerned to sell the Superplus, of the teynds they had right to, over and above what was due for the intertainment of their Ministers, Colledges, Schools, and Hospitals.

After the teynds are valued, and the Titular decerned to sell; or if the Titular be willing to sell without a decreet; The Heritor is infeft; and seased by the Titular, who in the dispo­sition, or Charter reserves to himself relief of the Kings an­nuitie, and of all imposition▪ [Page 163] laid or to be laid upon teynds; and warrands only from his own, and his Predecessors facts and deeds; and on the other hand the Heritor who has got a Decreet of valuation and not of vendition; is obliged to infeft the Titular; for securitie of the valued bolls.

By the foresaid Decreet Arbitral, the several Parish Kirks were to be provided; and therefore the Titular might Allocat any one Heritors teynds, for provision of the Minister; and so he was excluded from the priviledge of buying, where­as, it had been much better, that the Stipend had been pro­portionably laid upon all the Heritors.

Teynds are not debita fundi; and so singular Successors are [Page 194] not lyable in them; but yet the Minister has so far a taci [...] hypothique, that he may exact his modified stipend from any of the Heritors; as far as hi [...] teynds will extend, reserving relief to that distressed Heritor▪ and if the Heritor sell his Crop, the Merchant, who buyes the same will be lyable; but ten­nents will not be lyable, if they pay a joynt dutie payable to thei [...] Master for Stock and Teynd.

When the tack of teynd▪ expire; the Titular needs no [...] use a warning against the tacks­man as in lands; but he raise [...] and executes an Inhibition a­gainst the Tacksman, whic [...] interrupts tacit relocation, fo [...] that and all the Subseque [...] years, after which the Introme [...] ­tors, are lyable to a Spuilie.

[Page 195]The Parliament 1633. did after the said submissions and Decreet arbitral, grant to His Majestie an Annuitie out of all teynds; except those payed to Bishops, and other pious uses; viz. [...]en shilling out of every boll of teynd-Wheat; out of the boll of the best teynd-Bear, eight shilling; out of Oats, Peas, and Rye, six shilling, where the boll of these grains did yield a Boll of Meal; and where the Rent consists of money, six merks out of every hundered; and this Annuity is debitum fundi; but not being annext to the Crown, it may be, and is ordi­narly bought by the Heritors, from His Majesties Theasurer, or others having right from the King.

Title XI. Of INHIBITIONS.

PRoperty, and Real Rights, with the burdens affe­cting the same, being explained: It is fit now to treate of Legal Diligences, by which these rights may be [...]victed, or the free use and dis­posal thereof Restrained; which diligences are chiefly three, Inhibition, Comprysing, and Ad­judication.

Inhibition, is a personal prohi­tion, by letters under the Sig­net, Discharging the partie In­hibit to sell, Dilapidate, or put away any of his Lands, in prejudice of the debt due to the Raiser of the Inhibition; the ground and Warrand thereof [Page 197] is an Obligation, or Bond for doing and performing any thing; or a depending Process; And if these Inhibitions be not raised upon Legal and Relevant grounds, they may be redu­ced.

Inhibitions reach onely Heri­tage, but not moveables▪ though the stile thereof runes equally against both; but moveable bands may be reduced, in so far as they may be the Foundati­on of real diligences to affect He­ritage; and they extend only to posterior voluntary Rights granted after Inhibition; but not to Apprysings, or Adjudica­tions, though led posterior to the Inhibition, if the ground thereof was anterior; neither do they extend to posterior dis­positions, and Infeftments de­pending upon prior obligements; [Page 198] either general or particular, for granting of these Rights; nor to Renounciations of tempo­rary Rights; albeit posterior to the Inhibition, these being ne­cessar upon payment.

But by a late Act of Sede­runt Act of Sed. 19. Feb▪ 16. 1680., If the Creditor intimat by way of Instrument, to the person having the right of Reversion, that the Wadsetter, or Annualrenter, stands inhibit at his instance; and does produce in presence of the Parties, and Notar, the Inhibiti­on duly Registrated; The Lords will not sustaine Renounciations, o [...] Grants of Redemption; al­though upon true payment; unless there be a Declarator of Redemp­tion obtained, to which the Inhibi­ter must be cited.

The way of executing Inhi­bitions is, that the same must be by a Messenger against the [Page 199] person Inhibit, personally, or at his dwelling place, and at the mer­ [...]at cross of the head Burgh of the shire, Stwartry, or Regalitys where the person inhibit dwells K. J. 6. Par▪ 1 [...]. Act 264▪ & 265. par. 1 [...]. Act 1 [...]., and after crying of three several oyeses, and publick reading of the Letters, the whole Leiges are discharged to purchase any Lands or Heritages, from the person inhibit; and the Messenger leaves or assixes a coppy of the letters at the mercat cross; all which most be written in a paper, and subscrived by the Mes­senger and by two witnesses K. C. 2▪ Par. 3. Act 26.; which write, is called the execu­tion of Inhibition; and there▪ after the letters and executions thereof must be Registrated within 40 dayes, after the execution thereof; either in the general Register at Edinburgh, or in the particular Register of the Iuris­diction, [Page 200] where the person inhibit dwells; or the major part of the Lands lye K. J. 6. Par. 7. Act▪ 119▪; and if any of these Acts be omitted the Inhibi­tion is null, these being de soleni­tatibus instrumenti.

Title XII. Of Comprisings and Adjudica­tions.

THE Fie being thus settled in the Vassal it may be either taken from him, and evicted for his debt, or his crimes; the first, is, by apprysing, and ad­judication, and the last, by confiscation and forefaulture.

Apprising proceeds by letters charging the Debitor to com­pear before a Messenger, (who [Page 201] is by the Letters made Iudge; and Sherriff in that part in place of the Sherriff of the shire, whose office properly it is K. J. 6. Par. 5. Act 37.) and to hear the Lands spe­cified in the letters, apprised by an inquest of 15. sworn Men, and declared to belong to the Creditor for payment of his debt; but because Our Law thought it not just that a mans Land should be taken from him whilst his moveables could pay his debt; therefore, in the first place, the Messenger who exe­cutes the Letters must declare, that he searched for moveables; and because he could not find as many as would pay the debt; therefore he denounced the lands to be apprised on the ground of the Lands, and at the mercat cross of the Shire, Stewar [...]ry, or Re­gality where the Lands lye, [Page 202] and left coppies both on the ground, and at the Cross.

At the day appointed by the Letters, the Messenger who is made Sherriff in that part, Fences a Court, and the De­bitor being called, his lands is offered to him for the money; and if the money be not ready: the Inquest finds that the Debiors lands should belong to the Cre­ditor for his payment, and this is called a Decreet of Comprising; and the most part of the in­quest affixes their seals thereto; upon which the Compryser gets a Charter past in Exchequer, and is infeft by precepts out of the Chancellary; if the Lands hold of the King; and though of old, land apprysed, was pro­portioned to the money; yet thereafter whatever land was [...]ought to be apprysed was [Page 203] accordingly apprysed; though farr exceeding the sum in value, because seven years was given (which was thereafter proro­gate to ten K. C. 2. Par. 1. Sess. 1. Act 62) for Redeeming the Land by payment of the true sum, and this is called a legal reversion; because the Law gives it to the Debitor; and if it be not redeemed within that time, the land belongs to him­self for ever; but that legal runs not against minors; because they want Iudgement to know their hazard; so that they may re­deem at any time before they be 25. years compleat; but if the Comprysing expyre during their minority; the Compryser will thereafter have right to the whole mails and duties, albeit exceeding his annualrent; But that part of the Act is altered by a posterior statute, and the [Page 204] appryser is restricted to his annual­rent during the minority of the Debitor K. C. 2 par. 1. Sess. 3. Act 19..

If a minor succeed to a minor, whose lands are apprysed, he has right to redeem, as if the Comprysing had been led against himself; But if a Major succeed to a Minor, after the Legall is expired, he hath onely year and day to redeem; and if the seven years be unexpired in the Minors time, the Major may redeem within these years that are not run: And if the Rent of the Lands be not cor­respondent to the annualrent of the Money; whoever has Right to the Reversion, whether Ma­jor or Minor, must satisfie the whole sums and annualrents rest­ing before he can K. J. 6. Par. 23. Act 6. redeem; But the Compriser during the Legal is restricted to the annual­rent [Page 205] of the sums due to him; and the superplus of his Intro­mission will be imputed in pay­ment of his principal sum; and if he be payed by Intromission, within the Legal of his whole principal sum, bygone annual­rents, and expenses, with the com­position payed to the superior, the comprising expires, ipso facto K. J. 6 par. 21. Act 6..

Though the supiriour be not regularly obliged to receive a singular successour; yet least by collusion betwixt the debitor and his superiour, the true creditor should be unpayed; There­fore by a special Act of Parlia­ment, the superiour is forced to receive a Compryser upon payment of a full years Du­ty of the Land K. J. 3. Par. 5. Act 37. K. J. 6. Par. 23. Act 6., and he gets no more from all; though many Comprisers charge him to receive them; but if the [Page 206] superiour pleases he may retain the Land to himself, he pay­ing the Debt.

The first Comprising, without seasin, carryes right to all Tacks, Reversions, and other Rights, which require no Infeftment; and all posterior Comprisings need not seasin; because they carry onely the Right of Reversion; but yet ordinarly second Appri­sers do infeft themselves, be­cause the first may be null, or become payed; or the first Compriser may lye out from seeking Meals and Duties; or the second Compriser would remove Tennents, which none can pursue without being Infeft, but the Superiour comprising needs no Infeftment.

After denounciation of the Lands to be apprised, the De­bitor can do no voluntar deed [Page 207] by Disponing, or Resigning; (because else he might fru­strate the diligence) except he was before denounciation speci­ally obligedto dispone or resigne.

In a competition amongst Apprisers, the first Infeftment, or charge against the Superiour is alwayes preferred; and if the first Compriser did diligence to be infeft, but was stopt by col­lusion, as if the Superiour to gra­tifie the second Compriser, should unjustly suspend the first; albeit the second Appri­ser be first infeft, yet the first appriser having done diligence by charging, the Superiour will be preferred to the second appriser first infeft.

The Compriser during the years of the legal is not obliged to enter to the possession, but if he once enter he must be [Page 208] comptable for the Meals and duties though he leave off to possess; but if the meanest part of the sum be unpayed after the expyring of the Legal, the whole land comprised belongs to the Compriser without con­sideration of what he has intrometted with; to prevent which the Debitor, or a Second, or any posteriour Compriser, who has comprised the right of Re­version, does before the Legal ex­pire, require the Compriser to compear at any day, or place, to receive his Money, in so far as he is not payed by his Intromission; and having con­signed the same accordingly at that day, he raises an Action of Compt and Reckoning before the Lords of Session; and if it be found that he is payed by In­tromission, and the Money con­signed▪ [Page 209] The Lords decern the com­prising to be payed, and extinct; nor needs the Debitor get new seasin; for the former Right revives; since the Fie was still in his Person, upon condition, that he would pay the sum within the Legal.

In this Compt and Reckoning, the compryser will get allow­ance of the sherriff Fie; which is the twenty penny of the sum that was comprysed for, and of the entrie payable to the superiour, though the appryser truely payed neither; but he will not get payment of a Chamberlane Fie for taking up the rent; except he really payed it.

All apprisings led since the first * K. C. 2 Par. 1. Act 62. of Ianuary, 1652. within year and day of the first effectual com­prising by infeftment, or charge [Page 210] against the Superiour, come in pari pasu, as if they were all contained in one apprising. But the posterior apprisings within year and day; must pay their proportion of the Expenses of the Infeftment, and composition given to the Superiour by the first appriser;

Because appearand Heirs did frequently acquire Rights to expired apprisings against their Predecessours, by which they bruicked their [...]state, without paying his Debt, to the ruine of lawful Creditors; Therefore, Our Law did very justly ordain, all such Appri­sings to be redeemed for the sums truely payed out by the appearand Heir; which proceeds, albeit the appearand Heir acquire these Rights in his Predecessours lifetime. But if the expired [Page 211] apprising was acquired gratis, by the appearand Heir, the same is onely redeemable by the Creditors, for the sums contained in the apprising Act fore­said..

Because the Parliament thought it exhorbitant to take the greatest Estates for the smal­est sums, and to make a Messenger Iudge in affairs of so great importance.

Therefore in anno 1672. this way of comprising was altered, and in place thereof the Creditor now gets land adjudged to him by the Lords of the Session, proportionally to th [...] sum [...] due to him for obtaining in­ [...]eftment, with a fifth part more; because the Creditor is obliged to take land for his money; which Adjudication coming in place of Comprisings is perfected by Charter and Sea­sin, [Page 212] as Comprisings; and the Su­periour is obliged to receive the Adjudger K. C. 2 Par. 2. Sess. 1. Act 18.; but it is redeemable onely within five years by Ma­jors.

If the Debitor compear not to concur for compleating the Adjudgers right, by giving him a progress, & transumpts of the evi­dents, and ratifying the Decreet of Adjudication; then the whole lands may be adjudged, as they were formerly apprised; it be­ing unreasonable [...]o s [...]rce a Man to take proportional land for his money, and yet to be unsecured even for that pro­portion; and they are redeemable within ten years; (these Adjudi­ [...]ations being now come in the place of Apprisings), and have the same priviledges and restrictions which comprisings had by the Act of Parliament, made [Page 213] concerning Debitor and Credi­tor, in K. C. [...] Par. 2. Sess. 3. Act 19. Anno 1661. But if the Creditor attain possession upon his comprising, or Adjudi­cation; he can use no further execution against the Debitor, except the Lands be evicted.

There are other two kinds of Adjudications, allowed by Our Law; the first is, when the appearand Heir of the Debitor is charged to enter Heir; and re­nounces to be Heir; the Credi­tor having obtained a Decreet, cognitionis causa, fo [...] constitu­ting the Debt, wherein the appearand Heir is onely pursued for Formality; But the De­creet can have no effect Person­ally against him; The Heredi­tas j [...]cens will be adjudged to the Creditor, for payment of the Debt due by the Defunct; which if it be liquid, and [Page 214] instantly instructed; the Pursuer in the same Process protesting for Adjudication, the same will be allowed to him, summarly without necessity of any other Decreet, cognitionis causa.

These Adjudications are re­deemable within seven years, at the instance of Con-Creditors, one after another, who have likewise obtained Decreets of Adjudication; And a Minor re­nouncing to be Heir, may be reponed, and allowed to redeem upon payment K. C. 2 Par. 1 Sess. 1. Act 62..

And if the Superiour be charged to infeft the Adjudger, he will get a years rent for com­position, as in Comprising K. C. 2 Par. 2 Sess. 1. Act. 18..

Adjudications, carry right to all which would have fallen to the Heir; as all Heritable Rights, and the whole bygone [Page 215] rents and duties, since the de­functs death may be adjudged; because these belonged to the Heir.

There is another kind of Adjudication competent by Our Law; that is for performing any obligement which consists in facto, and relates to particu­lar dispositions; or obligements to infeft and after diligence used by Decreet, and Registrated horning against the disponer, and his Heir, for making the same effectual: the Lords will adjudge the Lands disponed to the pursuer as a remedium ex­traordinarum there being no other remedy competent.

This Adjudication extends no farther than to the thing disponed; and hath no reversion; nor does it require charges to enter Heir, or renounciation; but [Page 216] the Authours right must be in­structed.

Confiscation will be handled in the Title of Cryms, and Cri­minal Processes.

Title I. Of Obligations, and Contracts in general.

HAving thus cleared Real Rights; We will now proceed to treate of Obliga­tions, and Personal Rights.

An Obligation, is de [...]ined to O [...]l [...]ga­t [...]on. be that Legal [...]ye; whereby we are bound to Pay, or Perform any thing.

[Page 218]The chief division of Obliga­tions by the Civil Law, and Ours, is, that some are Natu­ral; because they arise from the principles of right Reason, or Laws of Nature. Some Ci­vil, because they arise from positive Laws, or Municipal Cu­stoms.

Another considerable division of Obligations is, that some arise from Contracts; some from deeds, resembling Contracts; some from malefices, and some from deeds which resemble male [...]ices, Ex contractu, aut qua­si contractu; ex male [...]icio, aut quasi male [...]icio; for we become equally tyed and obliged to Men; either by contracting expresly with them; or by doing some deed which induces an obligation without an expresse paction; or by committing male­fices [Page 219] against them.

A Con­tracts. Contract is an agreement en­tered into by several persons, inducing an obligation by its own Nature; Con­tracts. and the obligati­ons arysing from Contracts, are divided and distinguished, according as they are perfect­ed, either by the sole consent of the Contracters; or by the in­tervention or tradition of things; or lastly, by Word or Write; hence is that remarkable divisi­on of Contracts in the Civil Law, Qui re, verbis, literis, aut concensu perficiuntur.

The Contracts which depend upon things, are these which arise either from borrowing; (which comprehends indebite solutum,) or from loan; or from depositation; or from im­pignoration; and are called mu­tuum commodatum, depositum & pignus.

[Page 220] Mu­tuum. Borrowing, or mutuum, is that contract, whereby a Man get­ting any thing from another, is obliged to restore him not the same thing that was borrowed, but the equivalent; or as much of the same quality in measure, number, or weight; as when one borrowes a thousand pounds, the Receiver obliges himself to restore not the same; but another thousand pounds; and therefore the propertie of the thing borrowed, being transfer­red from the Giver to the Re­ceiver; the Receiver runs the hazard of all the losse that the thing Borrowed can su­stain, after it is delivered: This contract is most strictly interpreted, so that nothing is understood but what is clearly exprest.

Com­moda­tum. Loan, or Commodatum, is [Page 221] that Contract whereby a man gets the Loan of any p [...]rticu­lar thing Gratis, for some spe­cial use, and obliges him to restore the same thing in specie; and not the equivalent; as when a man gets the Loan of a Horse, or Coach; and because in this case, the propertie re­mains with the lender, there­fore if the thing lent be lost, or perish by chance, the losse redounds to the lender; for the thing is still his; but if the thing be lent meerly for the advantage of the borrower, he is lyable to do most exact di­ligence; and therefore, if the thing perish, or sustain any preju­dice for want of exact diligence the borrower must make up the same; but if the thing was lent for both the borrower and the lenders advantage, then [Page 222] from the same principal of natural equity, the borrower is only obliged to do such di­ligence, and to be so carefull of the thing borrowed as he would have been of his own.

In this Contract, the receiver is o­bliged to restore the same spe­cies in as good condition as he got it; and the Lender is obliged to pay the Receiver any conside­rable expense, that he neces­sarly bestowed upon the thing borrowed, the Law not allowing inconsiderable expenses; because, the Borrower has the use of the thing, which should compense these. Preca­riu [...].

Precarium, is, when any thing is lent to be called back at the Len­ders pleasures, wherein it differs from Commodatum; which im­ports alwayes a determinate time for making use of the thing lent

[Page 223] De­posita­tion. Depositation, is that Contract which is entered into by one mans delivering any thing, into the custodie of another to [...]e k [...]pt gratis for his use; and there­fore, because in this Contract, the propertie remains with him, who did depositate the thing, if it be lost, it is lost to him; and since depositations are made for the behoove of him who does depositate; Therefore, the Depositar (for so we call him, in whose hand the thing is Depositated) is only lyable if the thing Depositate, was lost by the depositars dole, or gross fault; nam d [...]ositarius tantum prest [...]t dolum, & latam [...]ulpam; yet Inns-keepers, S [...]ablers, and Masters of Ships, are lyable to most exact diligence, in preserving the goods of Travellers and Passengers, which they [Page 224] bring into their Houses, and Ships, and to repair and make up all the loss they may sustain, while they are in the Inns, or Ships, whether the prejudice come by the Servants, or Mariners, or by Stran­gers, which special kind of de­positation, is introduced by equity, contrare to the Common Rules of Depositation, and which we have immediately from the Civil Law, and edictum praetoris, Intituled, Na [...]tae caupones Stabularii, &c.

As in this Contract, the Depositar is lyable to restore the same thing that is Deposi­tate, and not the equivalent; so the Depositor is obliged to pay the Depositar what he bestowed upon it, whilst it did lye be­side him, for generally a Gratuitous Office, ought to prejudge no man.

[Page 225]But he cannot crave Com­pensation upon any debt due to him by the Despositar, which is singular in this Contract.

Pledge, is the Contract, Pledge. whereby one man gives to an­other any thing, for the Re­ceivers Security for what he owes him, to be redelivered upon payment; and therefore, because the thing it self in specie, is to be redelivered; if it perish during the impignoration, by the gross fault or fraud of him who receives the pledge, it perishes to the Impignorator; and be­cause Impignorations are made for the advantage both of the giver and receiver, (the one being concerned to get money, or some such thing upon the pledge, and the other to get a pledge for security of his money;) therefore he who receives the [Page 226] pledge, is lyable to do such dili­gence for preserving thereof as prudent men use to do in their own Affairs; but he is not lyable for culpa levissima; the Contract being for the be­hoove of both parties; and he will have repetition from him; for what he profitably bestowed upon it during the Impignoration.

Sometimes what is Impigno­rated is not delivered, and then the Pledge is called an Hypothe­que, and the Law some­times makes such [...]acit hypothe­ques without express paction, as where it makes the [...]orn growing upon land, or the goods brought in to the House, that was set in Tack, to be lyable to the Heritor for pay­ment of his rent.

If one man payes to another more than is due to him; or [Page 227] what is not due at all, the Law allowes to him Repetition of what was unjustly payed; and this is called ( condictio indebiti;) because by paying Condi­ctio In­debiti. to you, I oblige you really and in effect, to repay what shall be found not to be due; or to have been payed more than was really due; but since this obligation arises from the payers ignorance, therefore if he knew that what he payed was not due, he will not get Repetition; but what he payed will be lookt upon, as a do­nation, but it must be ignorantia facti, for ignorantia juris avail­eth no man; and since this repayment is only allowed by the principles of natural equity; therefore if what was payed was due in equity, though it was not due by positive Law, [Page 228] the payer will not get Repeti­tion.

Title II. Of Obligations by Write, or Word.

SOme Obligations, require Write, to make them Obliga­tion by Write. binding; whereas others require Write only by way of Probation, that is to say, cannot be proven without write, though they be valid, and binding without it.

All Obligations for transmit­ting the reall right of lands, do so far require Write of their own nature; that though the bargan be solemnly and clearly ended, by verbal transaction; [Page 229] yet there is still place to resile, or locus penetentiae, till the write be signed.

Though verbal promises do [...] by Our Law, bind the promiser; Promi­ses. yet because the position and import of words may be easi­ly mistaken by the hearers; therefore verbal Obligations or promises can only be proven by Oath of partie, and not by wit­nesses, though the sum be ne­ver so smal.

Because, Mens subscriptions may be easily counterfitted; therefore by an express Statute with Us, no Obligation though in write for more than 100 lib. is valid; except it be sign­ed in presence of two subscriv­ing witnesses, if the partie can write; or by two Notars, and four witnesses; if the partie can­not write K. J. 6. Par. 15. Act 175; except the write [Page 230] be holograph; and that the writter and witnesses be specially designed K. C. 2 pa [...]. 3. Act 5.; and though the subscriving by two initial letters be sustained, where it is prov­ed that the subscriver was in use so to subscrive; yet the Granters mark is not sufficient, except the verity of the affix­ing that mark be referred to the granters Oath.

Such is the favour of commerce, and such expedition it requires, that upon its account, bills of Exchange are sustained; though Bills of Ex­change. they be not signed before wit­nesses; and delivery of goods, upon bargans are sustained to be prov'd by witnesses; though there be no write; and such is the favour of contracts of Mar­riage; especially where they are become Nottour by the sub­sequent Marriage, that they are [Page 131] sustained though there be no witnesses.

By Our Law, an Obligation in write is not binding; except it either be delivered, or dispense with the not delivery; by a spe­cial clause therein; nam traditi­one transferuntur rerum dominia; but tradition is not requisite in mutual contracts; and if the write be in his hand, in whose favours it is made, it is pre­sumed to have been delivered; and cannot be taken from him upon the pretence of not delivery; except it be referred to his Oath that it was never a delivered evident by the Granter.

Title III Of Obligations, and Contracts arising from Consent, and Accessory Obligations.

THough all Contracts require the consent of the Contracters; yet there are four, viz. Emption, Location, Society, and Mandat; which are said in a more special way to arise from Consent; because these Contracts are perfected by meer consent of Parties, without any further solemnity, or tradition; and thus how soon two parties agree, Emo & Vend. concerning the price of any thing that is to be sold, that Contract is by meer consent so far per­fected, that he hath the seller [Page 233] precisly obliged to deliver the thing bought and perfect the sale; albeit the dominium or property be not transferred, but remains with the Seller un­till delivery; and if the thing bought perish without the Sellers fault, even before delivery, the losse is the buyers, in re­spect of the Personal obligement upon the Seller, to deliver it, and the buyers right is established even before tradition; and though earnest, or arles be given as a Symbole or mark of agreement; yet the consent with­out the earnest or arles (as we call it) compleats the bargan; and if the earnest be in current money, it is to be imputed as a part of the price. Empti­on.

In this Contract of Emption and Vendition, their must be a price, consisting in numerate, [Page 234] and down told money; for if one thing be given for another the Law calls that Contract, Permutation, or excambion, and not Emption, and Vendition; and this price must be certain and definite; but if the price be referred to another, the bargan will subsist; except that third partie, to whom it was referred, either will not, or cannot determine the price.

Location and Conduction, is a * Loca­tion. Contract, whereby a hyre is given, for the use and profite of any thing, or for the work of persons; It differeth from Emption and Vendition, chiefly in this, that the designe of that Contract is, to transferr the property; but in Location the property remains with the Setter.

This Contract, being entred [Page 235] into by the mutual consent, and for the advantage of both parties; the conductor is only lyable, to use and adhibite a moderate diligence, for pre­serving the thing set; that is such diligence as prudent men, adhibite in their own affairs; so that if the same perish without his gross and supine negligence; or fraud, he is not lyable to make it up to the Locator.

Location or setting of Lands for a certain hyre, (called the Tack-dutie,) is frequent in Scotland; and it is to be observed that if the Ground yield no in­crease, but is absolutely barren, without the Fault of the Con­ductor; the hyre will not be due, since that was given for the profite and use of the ground; But if there be not an absolute Sterility; and that the Land [Page 236] yield some profite, though ne­ver so little; the hyre will be due, if the profite but exceed the expence of the labouring.

From this Contract there a­rise two Actions, the one whereby the Conductor is o­bliged to pay the hyre agreed unto; and to restore the thing set after the end of the Locati­on, in as good condition as he got it. The other is an Action whereby the Locator is bound to refound to the Con­ductor, the necessary expenses imployed upon the thing hyr­ed, during the Location. Vide supra, Part 2. Title 6.

Society, is a Contract, whereby several persons obliege them­selves Society to communicate losse and gain arising from the things com­mon in the Society.

[Page 237]All the Partners in the Socie­ty, do by the nature of this Contract share equally; except it be otherwise provided; and if either the share of the gaine or losse be expressed, the one regulates still the other; but because some Mens pains are of as great value, as other Mens money, therefore it is lawful and consistent with the nature of So­ciety to contract so, as that one may have the half of the gain, and no losse; but the Con­tract would be null, if it were provided, that one should have all the gain and no losse, for there could be no compensation, though the other were never so skilful.

By this Contract, all the Partners are obliged to ad­vance for the affairs of the So­ciety, according to the shares [Page 238] they have in it.

The Society is extinguished, and the Persons who entered therein loosed therefrom by the death of any of the Partners; or by their becoming insolvent; except it be otherwayes provided; for this is a Per­sonal Contract, wherein Men respect the Humour and in­dustrie of one another; and so this Contract is disolved, by the simple Renounciation of any of th [...] Partners; so that every one has a Negative Vote, and if the Society be entered into, with this condition, that it should not be dissolved at the option of any of the partners; the Law did reprobate such Pactions; and from the same principle likewise it is, that partners in a Society, are not lyable for further dili­gence, then they used to ad­hibite [Page 239] in their own affairs; for having voluntarly choosed one another for partners; it is pre­sumed they are satisfied with one anothers diligence, the contract being entered into for the behoove and profite of all the partners.

Mán­date. Mandate, is that Contract whereby one employes another to do, or manage any business▪ gratuitously; for if he who is employed get a reward, it is not properly a Mandate, but Locatio operarum, or a seeing of the person so employed; but yet if the receiver of the mandate has been at any expense upon the account of the mandate, the employer must pay it.

He who receives the mandate is obliged to execute the same, according to the rules prescriv­ed by the employer, and not to [Page 240] exceed the bounds of his mandate; And therefore if Titius imployed Seius, to buy him, such a particular piece of Land for 10000 lib. Titius is obliged to ratifie his bargan; though he buy it for 9000 lib. because ten comprehends nine; but if he pay 12000 lib. for it; he is not obliged to ratifie the bargan; because he exceeds the bounds of his Commissi­on.

Mandates, expire either by the revocation of the employer, if the thing or business in which he was employed be intire; or by the death either of the person em­ployed, or of the employer, or by the renounciation of the person employed; but in all those [...]ases; if the thing un­dertaken be not intire; the per­son employed may and must [Page 241] proceed to execute the mandate, [...]otwithstanding of the Re­vocation, death, or Renounciati­on.

Mandatars are lyable for exact diligence, & culpa levissima; because albeit the Mandate be only gratia Mandantis, yet the very nature of it implies diligence.

Mandates, are either express arising, from express consent; or tacit, which are inferred by signs and ta [...]iturnity; as for instance, if a person present suffers another to act in his affairs; he is understood to give him thereby a tacit mandate.

Secundo, Mandates are either Gen. & Par. Mand. general for managing all affairs; or special, for doing some particular business, conform to the precise tenor of the commission; & albeit general mandates contain a most ample power of administration; [Page 242] yet they are not extended to committing of Crimes: Or,

Secundo, to Donations; al­beit where there is any pro­bable cause, gratifications may be allowed; which will be regulate secundum arbitrium boni viri; this being contractus bonae fidei, which implyes exube­rant trust.

Tertio, No General Mandate will imply a power to alienate Immoveables; or to submit or transact any litigious business.

Quarto, If in the general Mandate some speciall cases are exprest, it will not be exten­ded to cases of greater impor­tance, than those exprest.

The great favour of Com­merce, has introduced ano­ther kind of tacit Mandate; by which Exercitors of ships, and Prepositors are obliged by [Page 243] the Contracts of the Masters of the ships, and of the Institors, in relation to the Ships and Voyage; or to the particular Negotiation wherein they are intrusted.

Exercitor, is he to whom the profit of a Ship doth belong; whether he be the Owner, or hath onely freighted the ship: Exerci­tor. the Master is the person intru­sted with the charge of the ship, who has power to oblige the Exercitor, by contracting for the reparation, and out [...]igging of the ship; and in matters relating to the Voyage.

Institors, are intrusted with particular Negotiations at land, such as keeping of Shops, &c. Institor and they oblige their Preposi­tors, in relation to the affair wherein they are intrusted, as Exercitors are in Maritim af­fairs.

[Page 244]Neither the Masters of ships, nor Institors, need show their Commission, but their being in the Office is sufficient to oblige the Exercitors, and Constituents. And if there be many Exercitors the Masters Contract obliges them all In solidum; albeit what was borrowed be not employed for the use of the Ship; only it must be known to the Lender, that the Ship stood in need of such Repara­tions; and the facts of the Institors, will oblige their Con­stituents of whatsoever Sex or Age they be; and even though they be Pupils, Minors, or Wives, who cannot validly ob­lige themselves; for they have themselves to blame who Intrusted such Per­sons.

[Page 245]As all those Obligations and Contracts arise from express con­sent, so others arise from tacit consent; such as Homologation; as for instance, though a man be not obliged by a bond granted in Minority; yet if he pay a part of it, or annualrent for it, after he is Major; the Obligation is thereby homologat­ed or own'd, and becomes valid; not from the time of the Homo­logati­on. Homologation, but from the date of the Write; and there­fore it is fit that such as design not to own, null, or invalid deeds, should abstain from doing any thing, that may inferr an approbation of them; but because Homologa [...]on, is actus animi, therefore it should not be proven by witnesses.

Because all Obligations, can­not be bound up under general [Page 246] and regular names of Contracts; therefore the Law allows some Obligations, to pass under the name of Quasi Contractus; be­cause Quasi contra­ctus. they have the resemb­lance, and are of the nature of Contracts; and these are Ne­gotiorum Gestio, whereby if any person manage your business Nego­tiorum Gestio. advantagiously for you; you are lyable to him for his ex­pense; though you gave him no Mandate; least such as are absent should be prejudged by the negligence of their Friends; as the Manager is lyable to refound to the Person whose affairs he managed, any preju­dice done to him since, else any man might be invited officiously, to middle in an­other mans affairs to his dis­advantage, but this is to be understood, si in utiliter gesserit; [Page 247] otherewise if he acted profitably; albeit the event do not suc­ceed, he will get his expenses.

The other quasi contractus, are Tutorie, communion of goods, entering to be Heir, the Obligation of repayment that arises upon payment of what is not due; for if one be Tutor Tutory. to you, he enters in a kind of Contract with you, whereby he is bound to administrate your affairs, and you are bound to pay him his expense; but of all these I have treated elsewhere in their proper places, as I shall do of malesices, and and what resembles them, when I come to treat of Crims; of which these may be pro­perly said to be branches.

Having thus treated of Principal Obligations; the only Accessory Obligation that I need [Page 248] mention is Cautionary; where­by one man becomes surtie for another; either to pay a sum, or perform a deed; be­twixt Cautio­ners. which two, there is this difference, that these that are Cautioners for a sum, if they be bound conjunctually and seve­rally, with the principal debitor; may be pursued without pur­suing the Principal: & quoad the Creditor they are Principals; but these who are Cautioners for performing of deeds; as cau­tioners for Executors, and for Curators, or Factors, or for Messengers, cannot be prusued till the principal be discussed, for they being only obliged, that their Principals shall compt, or be honest; therefore they cannot be lyable untill the Principals first be cited to compt in the one Case; or to [Page 249] answer for their delinquencies in the other; and they are onely lyable to make up what is wanting from their Princi­pals after they are discust.

Because Cautioners for sums are lyable as principals; there­fore their Obligation may sub­sist; though the Obligation of the Principal Partie be found null, or reduced by any privi­ledge given to the Principal by Law; as if a Man become caution for a Minor; or for a woman who is married, Nam sibi imputet, who became a Cautioner for such; but if the obligation was absolutely null in it self; as if the Principal did not sign, then this obligation because it is but accessory, re­tains so much of its own na­ture as to free the Cautioner.

Cautioners, are to get relief [Page 250] from their Principals, not onely of the principal sums, and annual­rents; but of all dammage, and interest; and whether the same be Relief of Cau: provided by the bond or not; and where there are many Co-Cau­tioners; they are lyable in soli­dum, quoad the Creditor; but if any of them pay the whole sum to the Creditor; though he get assignation from him to the whole; yet he must onely seek his relief from the other Cautioners, with deduction of his own part; which proceeds; albeit there be no clause of mutual relief in the bond; and they must communicate to their Co-cau­tioners, what ease they get by way of Transaction from the Creditor; but if they get the said ease by a meer Ratificati­on, as by Donation, &c. then they are not bound to com­municate [Page 251] what ease they get; for a Creditor may justly gra­tifie one of his Cautioners as his Friend, or Relation, without being obliged to gra­tifie the rest.

To make Obligations effect­ual, it is necessar that the subject matter thereof be such as will admit of an obligation; For, no man c [...] oblige him­self, to do what is either impossible, unlawful, or dishonest; nor to transmit the property of things Sacred; (these not being in comercio,) and albeit when the Performance of obligations be­comes imprestable, the Party is lyable for the Value, as Dammage and Interest; yet in these the Value is not due, nor will he be lyable in a pe­nalty, in case of not perfor­mance.

[Page 252]But yet a Man may oblige himself, to do something not in his own power, as to cause another dispone Lands; and if he fail, he will be lyable pro damno & inter esse; or for the penalty.

Amongst Obligations, Dona­tion Dona­tions. is also reckoned, which is an obligation proceeding from a Lucrative cause or title; For he who voluntarly, and gra­tuitously promises to give any thing, is thereby obliged to deliver the same; and this Voluntar giving, is called, a Do­nation, which is in Law defin­ed to be A meer Liberality pro­ceeding from no previous eompul­sion.

It may be perfected either by Write, or without it; but if without Write, it must be [Page 253] proven by Oath.

Donations, are either Simple, Remuneratory, or Mortis causae, that is to say, Donations made in contemplation of Death.

A Remuneratory Donation, Remu­nerato­ry Do­nations. called [...], is when a Man bestowes any thing not gra­tuitously, but to requite and re­pay some good deed done, or to be done to him; and so is not purely a Donation.

A Donation in contemplation Dona­tions in Con­templa­tion of Death. of Death, is, when the Giver designs rather the Person to whom he gifts to have what is gifted, than any other; but wishes him­self to have it, rather than him to whom he gifts it: And there­fore, though pure Donations are not Revocable, yet a Donatio Mortio causa is; being of the nature of a Legacy; and no Donation is presumed to be [Page 254] Donatio Mortis causa, except it appear to be so, either expres­ly, or by strong presumpti­ons, that the thing gifted, was onely gifted in contemplation of Death.

Gifts, being a meer Libera­lity, are not presumed; and Gifts. therefore by Our Law, Debitor non praesumitur donare quam diu est debitor: But this being onely a praesumptio Iuris, may be taken off by stronger Argu­ments, justly inferring, that Donation rather than pay­ment was designed.

Title IV. Of the Dissolution, or Extinction of Obligations.

HAving cleared how Obligations are con­stitute; It remains now to consider how they are taken off, and extin­guished; which is either by a contrary consent, or by implement and satisfaction.

Since Consent is necessary to Con­sent. the constitution of obligations, so a contrary eonsent, whether by a Discharge, or pactum de non pe­tendo; does dissolve and extin­guish Obligations; nam nihil est tam naturale, quam eo genere quidque dissolvere quo colligatum [Page 256] est; And therefore, if the obli­gation be constitute by Write, it requireth Write to the disso­lution thereof, which is cal­led a Discharge; And Dis­charges require the same so­lemnities Dis­charge. that obligations do; but yet, if the obligation was sa­tisfied, via facti, as by intromis­sion with Rents of Lands, &c. it is probable by Witnesses, as all Facts are.

Discharges, are either general of all that Parties can ask, or Dis charges general and particu­lar. claim; Or particular, of one particular thing or subject: And in general Discharges, if any particular thing be expresly discharged therein, the general clause will be extended to par­ticulars of no greater impor­tance, than what is expresly discharged.

Discharges do ordinarly bear a [Page 257] clause, discharging all preceedings till their date; and albeit they do not, yet three consecutive discharges, do presume, that all bygones are satis­fied, if they be immediately Apocha trium anno­rum. subsequent to one another, and granted by Parties, having power to discharge as discharges by Heritors, or Chamberlains, to their Tenants; and therefore discharges of 3. subsequent years granted by Merchants, who bought the Ferm of these years, will not inferr the pre­sumption; but it will be in­ferred by Discharges for a part of the three years granted by the Father, and the rest by his eldest Son, as Heir; the Discharges being in Write, containing a discharge of the whole years Rent; so that par­tial Receipts, albeit they ex­tend [Page 258] to more than the years Rent, will not presume, that all preceedings are payed; neither one Discharge for three subsequent terms, or years, the presumption being inferred from renewing of the Dischar­ges each year, without Reser­vation.

Obligations, are extinguished, and Pay­ment. dissolved by payment, which is, the performing of the obligation in the precise terms thereof, and is so favourable, that if it be made bona fide, it dissolveth the obligation; albeit he to whom it was made, had no right; so payment made to a Procurator after the Procuratorie was re­vocked without the payers know­ledge, will be sustained; and payment made to Ministers serving the Cure, though they have no Title to the benefice, will liberat the Payers.

[Page 259] Obligations are likewise fulfilled by acceptilations, which is an imaginary satisfaction, as if it were truely performed, and Accep­tilation has the effects and all the pri­viledges of payment.

Secundo, by compensation, whereby if the Creditor of a Com­pensati­on. liquid sum, become Debitor to his Debitor, in another liquid sum, the two obligations ex­tinguish each other ipso jure; and is equivalent to payment in all cases, but if the sums be not liquid, or if a species or body be craved to compense a liquid sum it will not be allowed.

Tertio, Obligations are taken away by Innovation, which is, the changing one obligation for another, and if the person of Inno­vation▪ the Debitor be changed, it is called delegation.

Innovation is never presumed [Page 260] except it be expresly mentioned, or that the obligation bears ex­presly to be in satisfaction of the former.

Quarto, Obligations are extin­guished by Confusion; that is to say, when the Debt and Credit meet in the same Person; as when the Debitor succeeds to Consu­sion. the Creditor, or the Creditor to the Debitor; or a Stranger to both; and the reason of the Extinction in these cases, is, be­cause the same Person cannot be both Debitor and Creditor.

Title V. Of ASSIGNATIONS.

ALL Rights, whether Assig­nation. Heritable or Move­able, are transmissi­able by Assignati­on; but if a Seasin once be taken, the Right is not Trans­missable by an Assignation, but by a Disposition; except Liferents, which are Trans­missable by Assignation even after Seasin; because they can admit of no subaltern Cedent & Assig. Infef [...]ments.

He who grants the Assig­nations is called the Cedent, and he who receives it, is called the Assignay.

[Page 262]Assignation to a Right is compleated by Intimation; and therefore in competition betwixt diverse assignays, the first intimation is alwayes preferred; This intimation Intima­tion. is made by a Procurator, who takes instruments in the hands of a Notar, that such an assignation was intimat, (so that one man cannot be both Notar and Procurator;) and if after this the Debitor pay the Cedent, he must repay it to the assignay; because the Cedent was denuded by the assignation; and for the same reason, the Cedents oath will not prove against the assignay if the assignation be for an One­rous cause.

But if the assignation be Gratuitous; or for the Cedents behoof; or if the matter [Page 263] be litigious, and after a depending Process; in any of these cases the Cedents oath, will prove against the assig­nay.

A pursute or charge of horning upon the Action assigned, has likewayes the force and effect of an intimation; but an Inhibition against the Cedent upon the assignation, will not supply intimation.

The Debitors private know­ledge of the assignation, is not equivalent to an intimation; but his paying a part of the sum? or annualrent for it, is equivalent to an intimation; and much more the writting a letter promissing to pay; since that is in effect a renewing the Obligation.

Bills of Exchange, and orders by Merchants to pay, need not [Page 264] be intimated; because in Com­merce we are Governed by the Law of Nations; nor need assignations to reversions be in­timated; because the registration is a publication of them, nor legal [...] & judicial assignations, such as apprisings, adjudications, and Marriage; and that because they are past, and expede publictly.

A Blank Band is equiva­lent to an assignation; and so Blank Band. must be intimated; and in competition with other rights, it is only preferred according to the date of its intimation, that the receivers name was filled up in it.

It is a general principle in Our Law, that in the competition of moe Creditors, the first compleat diligence is still preferred; And therefore, an Assignation is preferred to an Arrestment, if [Page 265] it be intimate before the arrest­ment; but if the imtimation and Arrestment be in one day, they come in pari passu; except the Arrester be in mora, and do no diligence upon his Ar­restment.

Title V. Of Arrestments and Poynd­ings.

THE ordinary Diligences, in Our Law, affecting Of Ar­rest­ments. and Poynd­ings. Moveable Rights, are Arrestment, which answers to Inhibition in Heritage, and poynd­ing which answers to Comprising in Heritage.

Arrestment is the cammand of a Iudge, discharging any [Page 266] Person in whose hands the Debi­tors Moveables are to, pay or de­liver up the same, till the Credi­tor who has procured the Arrest­ment to be laid on, he satisfied.

Arrestments may be laid on, by any Iudge in whose Terri­tories the goods are; or by the Lords of the Session wherever they lye, and that by special letters of Arrestment; or by a warrand exprest in the ordina­rie letters of horning: these letters are execute by a Messenger, and if after it is laid on the partie in whose hands it is made, pay; he may be forced to pay the same over again, or may be pursued Criminally for breaking Arrestment, the punish­ment being consiscation of Move­ables and their persons to be in the Kings will K. J. 6. Par. 7. act 118..

Arrestment can only affect [Page 267] moveable sums, and the ground thereof must be for payment of moveable debts, or sums due on Heritable security, if no infeft­ment has followed K. C. 2 Par. 1. Sess. 1. Act 51., and it reaches only to the sums al­ready due, or for which the year or term is current.

How soon on Action is rais­ed against a Person, his Goods may thereupon be arrested; and this is called an Arrestment upon a Dependence; but this Arrestment may be loosed by letters for loosing of Arrestment, which passes upon a Common Bill, and a Band of Cautionry is given to the Clerk of the Bills K. J. 6. Par. 22. Act 17., wherein the Granter of the band obliges himself to pay the sum, if the Arrestment be found lawful, and the sums or goods decerned, to belong to the Arrester; but Arrestments [Page 268] upon a Decreet or (which is equivalent) on a Registrat Band, cannot be loosed at all; Except the decreet be turned unto a li­bel, that is to say, the Lords do only sustain the Decreet as a libell or summonds against the Defender, or that the Arrestment was laid on after the Decreet was suspended; for in either of theses cases Arrestments may be loosed even upon Decreets.

Arrestment being but a Per­sonal Prohibition against the De­fender to pay, it lasts no long­er than the lifetime of him in whose hands the Arrestment is made; except it be renewed against his Successors; but it dyes not with him in whose favours it was raised, nor with him for whose debt it was * [...] Par. act 118 laid on; and if the debt be not liquid, the Debitors repre­sentative [Page 269] must be called to the Liquidation.

In the Competition amongst moe Arresters, preference is granted according to the Pri­ority even of hou [...]s; and the first Arrestment is not preferred if the Posteriour Arrester get the first Decreet, to make the Arrested goods forthcoming; for arrestment; being only an inchoat diligence, it is compleated by the sentence to make forth­coming; and yet if the Arrester did exact dligence to obtain a Decreet; his raising the first pursute, will prefer him. He also who arrests on a Decreet, will be preferred to him who arrests on a dependence; and he who Arrests after the term of payment will be preferred to him who Arrests before the term.

The Kings pensions and gra­tuities [Page 270] aliments cannot be ar­rested; because they are given for a particular and favourable use; and not applicable to the Arrester.

Poynding may be likewise used against moveables, by Poind­ing: vertue of letters of horning against the Debitors; containing poind­ing or any other inferiour Iudge, his Decreet or precept K. J. 6. Par. 12. Act 10. K. Ch. 2. Par. 1. Sess. 1. Act 29. which is done by a Messenger after the dayes of the charge are expired K: C: 2 Par: 2: Sess: 1: Act [...]:, the form there­of is; The Messenger after poynding the goods, apprises them upon the ground where he apprehends them; and offers them to the Debitor, for the sum for which they were ap­prised, and if he compear not, he carries them to the mercat cross of the head burgh of the shire, or other Iurisdiction where they [Page] are poinded, and there he ap­prises them, and delivers them to the Party, who is called the Poynder: but if any com­pear, and offer to make Faith that the goods belong to them, and not to the Debitor; then the Messenger must deliver them to that Party, else he is lyable in a spulzie.

Poynding, is a judicial sentence, and the Messenger is Iudge con­stitute by the letters; the Messenger writes likewise an execution of poynding and that execution is better believed than any who offers to prove the contrare; for that execution is onely quar­relable by improbation.

Arrestment, being but an inchoat diligence, discharging the Partie in whose hand the Ar­restment is made, to pay, the right to the goods arrested, re­main [Page 252] still in the Debitor, and may be poynded for his debt; for poynding is a compleat diligence▪ giving an absolute right to the goods poynded.

Labouring Oxen, or other Plough Goods cannot be poynded Labour ing oxen in time of labouring (least labouring should be other­wayes discouraged;) except there be no other Moveables upon the ground to be poin­ded K. J. 4 par. 6. Act 98..

Title VI. Of PRESCRIPTIONS

PRescription being a way of evacuating and annul­ling both Heritable, and Moveable Rights comes Pes [...]r. in here, after both these are explained.

Prescription is defined, an Acqui­sition of Propertie by the Poss [...]ssors continuing his possession for such time as the Law determines; Which was introduced not onely for punishing the ne­gligence of the [...], who owned not his Right for so many years; But likewayes, for securing Possessors, and such as derived right from them; and least by a constant uncer­tainty, [Page 274] the Possessors being un­secure, might neglect the im­provement of what they possessed.

Heritable Rights, (under which I comprehend Wadsets, Heritable Offices, Servitudes, Pa­tronages, &c.) and all Actions depending upon them, or re­lating Pres: of Herit. Rights. to them, prescrive with us in 40. years; if the Possessor being a singular Successor, have a Chartor, Disposition, or Precept, and Seasin in his Per­son; or being an Heir, have a constant tract of Seasins, con­tinuing and standing toge­ther, for the space of 40. years, flowing upon Retoures, or Pre­cepts of Clare constat; For, the Law did not trust a Seasin alone, it being onely the as­sertion of a Notar. But Rever­sions which are in the body of the Poss [...]ssors right; or reversions [Page 275] duely Registrated, prescrive not.

All Personal Rights, and Acti­ons relating to them, prescrive likewayes in 40. years; If a Pres: of perso­nal Rights. Document be not taken upon that Right, that is to say, If nothing be done, whereby the true Proprietor declares his intention to follow and own his Right K. J. 3. Par. 5. Act 29. Par. [...]. Act [...]:.

In both these Prescriptions, the extraordinary length of time, supplies the want of bona fides in the possessor; But, no length of time can make the possessor prescrive things Sacred, Religious, or publick; nor yet things stol [...]e, or robbed, Ob vi­tium reale, which affects such things.

Actions of Spulzie, and Ej [...]cti on, prescrive in three years, after committing thereof; as to the specialities of these Acti­ons, viz. the violent profits, [Page 276] and Oath in litem; But Minors have three years after their Majority K. J. 6. Par. 7. act 119..

As do also Actions for Ser­vants Fies, House meals, and Marchant compts; except they can be proven after these three years, by the Debitors oath K. J. 6. Par. 6. Act 83.: And removings, if Action be not intended with­in three years after the warn­ing K. J. 6. Par. 6. Act 82..

If Assysers err in serving a man wrongously Heir to his Predecessor, the Retour may be Assyers. quarrelled within 20 years; but the Assysers themselves can only be pursued for error, with­in three years K. J. 6. Par. 22. Act 13., but the right of blood it self never prescrives; and therefore a man may be served H [...]ir to his Father or Grand-Father, after a 100 years, being debarred by no time; [Page 277] nam jura sanguinis nullo jure [...]ivili adimi possunt.

If a Person who is forefaulted possessed lands 5 years before the forefaultur, without interruption, Forfei­ture: the King is obliged to show no right, in the person of him who was forefaulted to the lands, or others that he possessed; because its presumed that the person forefaulted would abstract the writs, which quinquenrial pos­session is to be tryed by an inquest of the Shire, where the land lyes K. J. 6. Par. 9. Act 2..

Arrestments on Decreets and depending actions prescrive with­in five years after sentence.

Meals and Duties due by Tennents prescrive, if not persued within five years, after the Ten­nents removing; Ministers stipends, and multurs pres [...]rive so that they cannot be pursued after five years, except they be pro­ven [Page 278] by the Debitors oath.

Holograph Bands; and subscrip­tions in compt books, prescrive in twenty years; except they be proven by the debitors oath.

And lastly, all bargans pro­bable by witnesses, all actions on warnings, spulzies, ejections, Arrestments, Ministers sti­pends, &c. prescrive within ten years; unless wakned every five years; but this alters not any shorter prescriptions of these actions K. C. 2 Par. 2. Sess. 1. Act 9..

All these prescriptions run de momento in momentum; so that the prescription runs till the last moment of the time allowed; but they run only from the time wherein the debt could have been pursued, since till then the Proprietar could not be called negligent, which negligence is the foundation [Page 279] of prescriptions; and therefore prescription runs not against a band from the date of a band; but only from the term of paymennt; and prescription of an action of warrandice, runs only from the eviction K. J. 6. Par. 22. Act 12.; because no man is lyable in warrandice, till the lands be evicted; and from the same principle it is, that contra valentem agere non currit, prescriptio; and that prescription runs not against Minors, in whom negligence is not punish­able, since it proceeds from no design; but from the un­ripness of their Age.

Vassals cannot prescrive against their Superiours; because the Vassals right acknowledges the Superiours; nor can Laicks prescrive a right to [...]ynds being incapable of such rights after the Lateran Council; but though [Page 280] the right it self prescrives, in neither of these cases, yet the bygons due by vertue of these rights before fourty years, may prescrive.

Prescription runs against the Kirk, and Mortifications; but on the other hand, because Pres­cription Church men are negligent, and rights may be lost in the change of Intrants; therefore, 13. years possession, is sufficient to main­tain a Church man in possession; which is called, decennalis & [...]riennalis possessio; and is a pre­sumptive title, and sufficient till a better be showen, by which it may be excluded; for prae­sumptio caedit veritati.

Prescriptions run likewayes a­gainst the King; except as to His Majesties annext propertie; or to his unannext propertie whereof the ferms, duties or [Page 281] feu ferms, have been compted for in Exchequer, since August 1455. years.

Any deed, whereby the true proprietar owns his right, during the course of the pre­scription, is called interruption; and prescription is interrupted in Our Law, either by a process, or Inter­ruption [...] a charge raised within the years of the prescription; though the citation was only on the first Summonds; and though the Summonds was past from, pro loco & tempore; But interruption by citation, is not sufficient unless it be made by Messengers personaly or at the parties dwelling house, and that it be renewed every seven years K. C. 2▪ Par. 2. Sess. 1: Act 9.; and that the Execution be signed by the Messenger and witnesses K: C: 2 Par: 3. Act 5..

Interruptions made against the principal party, interrupt as [Page 282] to Caution [...]rs; and interruption as to a part interrupts the pre­scription of the whole; so that if a man arrest the meals and duties of any part of a Barrony, he interrupts prescription, as to the whole Barrony.

Title VII. Of Succession in Heritable Rights.

HAving formerly shew­ed how Rights whe­ther Heritable, or Moveable, Real, or Personal, are constitute, and how they are transmitted to singular Successours: It remains now to consider how [Page 283] these Rights are transmitted by succession, beginning first with Succession in Heritage.

An Heir, is he that succeeds universally to all that belonged to the Defunct; and is therefore Heir: in the construction of Law, one and the same person with the Defunct.

Though the Executor, be in effect the Heir in moveable Rights; yet we call those only properly Heirs, who succeed in Heritage; and with us there are several kinds of Heirs di­stinguished by their several denominations. Heir of Line:

The first, and chief kind of Heirs, are the Heirs of lyne, who are so called, because they succeed Lineally, according to the right of Blood; and they succeed thus,

First, Descendants, according [Page 284] to the proximity of their Degree, in which the eldest Son is preferred to all his Brothers, and all the Brothers to the Sisters; and if there be onely Sisters, they succeed all equal­ly.

The next degree, is Grand Children, and their great Grand Grand Chil­dren. Children, &c. who succeed all in the same way.

If there be no Descendants, then Collaterals succeed, in which, the first degree is Bro­thers, and Sisters German, for the whole blood excludes the half blood; and Brothers the Sisters; Colla­terals. and Brothers by the Fathers side exclude Brothers by the Mothers side; there being no Succession with us by the Mo­thers side.

Failing Descendants, and Brothers and Sisters, the Suc­cession [Page 285] ascends; and all the Ascendants succeed upward, ac­cording to their degrees of Proximity, as the Descendants did downward; and thus the Father succeeds to his own Son; and failing him, the Grand Father, Great-Grand Fa­ther, &c. and failing of As­cendants in the right [...]ine, the Collateral Ascendants succeed in the same way, and thus the Fathers Brother; or if there be no Brothers, the Fathers Sister secludes the Grand Fa­thers Brothers, or Sisters, &c.

It is to be observed that in Heritage, there is a Right of Re­presentation, whereby the Descen­dants Repre­sentati­on. exclude still the Collate­rals; though nearer by many Degrees to the Stock, or co­munis stipes; And thus the [Page 286] great Grand-Child of the eldest Son secludes the second Bro­ther; because, he comes in place of, and so represents the elder Brother, his great Grand-Father.

The Heir of Line, has Right to the Heirship moveables, and excludes all other Heirs there­in; Heirship moveables are the best of each kind of moveables, which is given to the Heir; because he is excluded from Heirs of Line. all other Moveables; if there be pairs, or dozens, he gets the best pair or dozen; but in o­thers he gets onely one single thing; None have right to Heirship moveables, but the Heirs of Prelates, under which are comprehended all Benefice [...] Persons, the Heirs of Barrons, under which are comprehen­ded all who are infeft in Lands [Page 287] or annual rents, though not e­rected in a Barrny; And the Heirs of Burg [...]sses, by which are meaned, actual Trading, but not honorarie Burgesses.

If the Defunct had any Lands, Heir of Con­quest. or Heritable Rights, to which he could not succeed as Heir of Line, then he who suc­ceeds in these, is called, the Heir of Conquest; and the Rule is, that Heritage des­cends and conquest ascends; so that if the midle of three bro­thers dyes, his immediate elder brother would be his Heir of conquest; and if a Son of a second Marriage dyes, leaving three brothers of a former Mar­riage, the youngest would succeed in his conquest lands; and this I conceive was intro­duced, for enriching the elder brothers, whom Our Law still [Page 288] favours; whereas heritage must descend according to the Law of Nature.

These Heirs of conquest, have right to all lands, an­nualrents, heritable bands, and others; whereupon infeftment Con­quest. did or might follow, but they have no right to tacks, pensions, moveable Heir-ship; and all other rights, having tractum futuri temporis, and re­quiring no infeftment, and so not competent to Executors; all which belong to the Heir of line.

The Heir Male, is the near­est Male who can succeed; and Heirs Male. all Heirs of Line, are also cal­led general Heirs; because they succeed by a general service and represent the Defunct universally.

The Heir of tailzie is [Page 289] he to whom an Estate is tailzed, so called, because the legal Succession is cut off in his favours from the French word, tailer, to cut, and the mat­ter of tailzies may be Summond up in these few Conclusions.

Primo, In tailzies, the per­son first named, needs not be served Heir; as for instance, If I take my land to my self, which failing to Seius; Seius needs not be served; be­cause there is no cognition requi­site to clear that he is to suc­ceed; but if I take may lands to my self, and my Heirs; or to me, and the Heirs of such a Marriage; which failing to Caius; then either Caius in the one case; or the Heirs of such a Marriage in the other, must be served; because, it is requi­site to inquire, Whether there [Page 290] were Heirs, or who is Heir of that Marriage?

Secundo, In all tailzies, he on whom the last termination falls is Fiar; as for instance, If I take my lands to Seius, and failing him to Caius, and his Heirs; Caius is Fiar, and Seius is onely Liferenter.

Tertio, Though the last ter­mination fall on the Wifes Heirs, the Husband remains Fiar; because of the preroga­tive of the Sex; as for instance, If I take my land to my self, and my Wife, which failing to her heirs, my heirs would be prefer­red; except the estate belong­ed to my Wife as Fiar; For then her heirs would be prefer­red.

Quarto, Though in Conjunct-Fie Rights, if I take my lands to my self, and my Wife in [Page 291] Conjunct-fie, which Failing to our Heirs, my Heirs would be preferred, as to heritable Rights; but in substitutions to moveables, the Right would divide be­twixt her Heirs and mine.

Quinto, The Heir of Tailzie, has but a hope of succession, and so the Fiar may dispone; nor can the substitutes, or remoter members of the Tailzie, hinder him by Action, Inhibition, or o­therwayes; except there be a clause irritant, and resolutive, declaring, that if the first Mem­ber dispone, his Disposition shall be null; in which case, though generally the remoter member must be served Heir, to the im­mediate prior who was infeft; yet in that case, the remoter member may be served Heir to the first Disponer.

Sexto, If one oblige himself [Page 292] to make such a man his Heir of Tailzie, that Obligation tyes him onely once to tailzie his estate; but not that he shall not break that Tailzie; except the Obligation be for an equiva­lent Onerous cause: Or if a person oblige himself to do nothing contrare to his Tailzie, he cannot thereafter make a­ny voluntar gratuitous Right to the prejudice of that Tailzie; But yet the lands tailzied may be comprised, or adjudged for sums truely due, and not dolose contracted, to disap­point the tailzie. Heirs of provisi­on.

Heirs of Provision, are these who succeed by vertue of a particular provision in the infeft­ment; such as are Heirs of a second Marriage, and as to these Heirs of Marriages, we may observe two things; first, [Page 293] That if a Father by his Con­tract of Marriage, be obliged to employ a sum to himself, and Wife in Conjunct- [...]ie; and the heirs of the Marriage, he cannot in prejudice thereof do any fraudulent gratuitous deed; tho he may provide a Ioynter for a second Wife; or provisions for his Children of a second Marriage.

Secundo, Though a Father may assign or dispone sums to Children, when extant, where­by they will be preferred to posterior Creditors becoming Fiars by the said Rights; yet if the Father dispone to chil­dren to be procreat, this will be considered only as a destina­tion and so will not hinder the Father to make posterior Rights; or even posterior Creditors to affect by Diligen [...]es what is so disponed.

[Page 294] Tertio, Process will be sus­tained at the instance even of the appearand Heir of the Marriage, against the Father, to fulfill the special obligations therein, or to purge any deeds already done by him in preju­dice thereof.

Albeit, where Heirs are not designed in any right, the Heirs of Line, exclude all o­ther Heirs; yet if a man take lands to himself, and his Heirs Male tailzie, or provision; and thereafter acquire reversions, or tacks of the same lands to himself and his Heirs; these rights will accress to that special Heir, to whom the land was provided; for it is not presumable, that a man would give the lands to one, and the rights of them to another Heir.

[Page 295]When women succeed, all these of one Degree succeed equally, and because the estate is divided amongst them, they are called heirs portioners; the eldest not secluding the Heirs portio­ners. rest, and having no advantage over him; but where the Rights are indivisible, such as Titles, Iurisdictions, Superiori­ties, and all the casualities of these superiorities: such as Ward▪ Marriage, Nonentrie, Feu du­ties, &c. these fall to the eldest heir Female, without division; together with the Principle Messuage, it being a Tower, or Fortalice; for other houses are divided equally.

All these Heirs are lyable in solidum, if they once enter Heir; except heirs portioners, who are onely lyable pro rata, and heirs substitute in a sum, [Page 296] who are onely lyable to Credi­tors, in the value of the sum, to which they are substitute; But they have in SCOTLAND a Priviledge which they call, the benefit of Discussion, whereby Discus­sion▪ the Heirs of Line must be first pursued, to fulfill the De­functs de [...]ds, or pay his debts; And next to these the Heir of conquest, the Heirs Male, the Heir of tailzie, and Heirs of provision; but for fulfilling a deed relating to particular lands, the Heir who succeeds in these particular lands, must be first pursued, without discussing; and that which is meant by discussing, is that the Creditor must proceed by horning, caption and apprising, against the Heir, who is to be discussed; before he can reach the other Heirs.

[Page 297]An Heir is said with us, to be Heir active, who is served Heir, and may pursue, where­as he whom the Law makes Heir Active. lyable to be Heir, is said to be Heir passive; As when the appearand Heir is infeft upon a precept of clare constat by the Superiour, or otherwise medles with his Fathers Estate.

When the Predecessor dyes, he who should be Heir, (and Appea­rand Heir. therefore is called, appearand Heir,) has year and day allow­ed him to deliberate whether he will be Heir, which is cal­led, annus deliberandi Annus delib. K. [...]a. 6. Par. 2 [...]. Act. 27.; and which is indulged by the Law; because if a man enter once Heir, he is lyable to all the debts though far exceeding the estate; and within that year, he cannot be pursued, nor obliged to enter; but after the [Page 298] year is expyred, the Creditor may charge him to enter Heir, and if he resolve not to en­ter, he must renounce any Right he has by a writ under his hand.

This year is compted from the defuncts death; except in a posthum child, who has a year Post­hum Child. allowed him, after his Birth, and not only during this year; but after it expires, the appearand heir without instructing any Title, may pursue for exhibition of all Rights made to his Predecessors; and of all rights made by his Predecssors, to any in his own Family; but not to Sirangers; to the end he may deliberate, whither he will enter Heir; and the Liferenter is bound to aliment the ap­pearand Heir, not being able to entertain himself, though [Page 299] he renounce. vid. supra Part 2. Title 9. § Liferents.

If the appearand heir resolves to enter heir to his Predecessor, he must raise Briefs from the Chancellarie; which Brief is a command from the King. to the Iudge ordinary, where the lands ly, to cause cite 15 sworn men, to try whe­ther the raiser of the Brief be nearest heir; and this is executed or proclaimed at the mercat Cross where the lands lye; and if at the day appointed, these 15. sworn men find him to be the next person who should suc­ceed, they serve him heir by a paper which is called a service, and which being returned be them to the Chancellarie; there is a write given to the heir, whereby he is declared heir; and which is called, the retour, because it is their answer, and [Page 300] return to the Chancellarie of the points contained in the brief; and thereafter, the person who is served heir is infeft by a precepts out of the Chancellarie; and if the service was to any particular lands, it is called a special service; but if there was no land designed, it is only called, a general service; and this general service is sufficient to establish a right to heritable Bands, Dispositions, Reversions, Iurisdictions, and all other rights, whereupon the Defunct was not infeft, nor needed to be infeft; and a special service includes a general service but not E contra.

The general brief hath only two points or heads, viz. if the general Brief. Defunct dyed at the Kings peace; and if the raiser of the brief be the next Heir; but the special [Page 301] brief, has seven, viz. when the Defunct dyed. Secundo, If he dyed last vest, and seased, at the Kings peace. Tertio, That the raiser is next heir. Quaerto, Of whom the Lands are hold­en in capite. Quinto, By what manner of holding. Sexto, What is their old and new extent. Septimo, Whether the raiser be of lawful age; and in whose hands the Lands are at present.

Sometimes likewise, the Vassal without serving himself heir, gets a precept of seasin from the Superiour; wherein, be­cause the Superiour declares, that it is known to him, that such a man is heir to his Father; it is therefore called, a Precept of Clare constat; which therefore makes the Obtainer lyable passive, to all his Predecessors [Page 302] debts; but gives him only active right, to the Particular lands contained in the Precept; nor will it give him a right even as to these lands, except against those who derive right from the Superiour who gave it.

Bailiffs also of Burghs Royal, do infeft their Burgesses as heirs in Burgage lands, giving them seasin: as heirs, by deliver­ing them for a Symbole, the hesp and staple of the doors; and the seasin in that case, is in place of a service; as to these lands; but is not in other cases a sufficient active title.

The heir who is Retoured, holds either his lands of the King, and then he gets precepts out of the Chancellary, to the Iudge ordinary, to infeft him; which if he refuse, the Lords [Page 303] upon a Supplication, will di­rect Precepts to any other per­son, who is thereby made a Sherriff in that part; but if the lands hold of another Su­periour, then either that Supe­riour is himself entered or not; if he be entered, he will be charg­ed by four consequutive Precepts, to enter the Heir; and if at last he disobey, his immediate Superiour will be charged, and so till the heir arrive at the King who never refuses to enter any; and if the Superiour be not entered, he must be charged upon 40. days to enter, that be­ing himself entered, he may enter his Vassal; and if he re­fuse, or delay he losses all the Nonentries of his Vassal; but no other Casualities; because quoad these he was not Cul­pable.

[Page 304]Though the Person who should be Heir, do not enter to his Predecessors Heritage; yet he may be made lyable to his predecessors debt, by two passive titles, relating to heritable rights; viz. Gestionem pro haerede, and as Successor titulo lucrativo post con­tractum debitum, and there is a third passive title relating to Moveables, which is called▪ vitious intromission. Behav­ing as Heir.

Behaving as heir, or Gestio pro haerede, is when the person, who might have been Heir, immixes himself, and intromets with either the moveable heir­ship, or any heritable estate, be­longing to the Defunct; in which case, he is lyable to the Credi­tors, not only according to the value of what he intrometted with; but as far, and in the same manner as if he had [Page 305] been entered heir; and yet the Lords will not fasten this passive title upon a man; because of its extraordinary hazard; where the intromission is very small; or where he has a colourable title to which he might ascrive his intromission, as a factorie from the Compryser; or the Do­nator to the Escheat, or recognition; Gestio pro haerede, being magis animi quam facti; which facto­ries will defend; though there was no Declarator; but if the appearand heir had no factorie; it is not sufficient to alleadge the Defunct dyed Rebell, and so could have no heir; except his Escheate was declared be­fore intenting the pursuers acti­on; nor will this passive title, nor vitious intromission be sustained; except they be pursued in the intrometters own lifetime, [Page 306] they being kinds of delicts.

But he will not be lyable, if the Defuncts Right was redu­ced, though after his intromis­sion; And since this passive title was introduced by the Lords of Session, in Favours of the Cre­ditors, to deter appearand Heirs from fraudulent intromission; therefore an appearand heirs, paying his Predecessors debt will not infer this passive title▪ since that is for the advantage of Creditors; nor will the get­ting of money for ratifying a Comprising that is expired, infer this passive title, since the Creditors would have got no Advantage by that Right; but if the appearand heir had consented before the Compri­sing was expired, it would be a passive title; because as [Page 307] heir, he might have redeemed the Comprising.

Successor titulor lucrativo, is, where the appearand heir, to pre­clude Succes. tit. lucr. the necessity of entring heir; and so being lyable to the Cre­ditors, gets a Disposition from him to whom he would have been Heir, without any One­rous cause; the receiving where­of, though it be a small part of the Estate, makes him ly­able to the payment of all the Creditors debt; if the Right made, as well as the infeftment, was posterior to the Creditors lawfull debt. But if there be an Onerous Cause; then either it is not near equiva­lent to the value of the Lands disponed; and in that case, it will not defend against this passive title; Or, if it be near to the value, it will defend [Page 308] against it, but not against Re­stitution of that Value. And since this passive title, over­takes such as might have been Heirs; therefore, a Disposi­tion granted to a Grand Child, will make him Successor titulo lucrativo, though the Father be alive; since by the course of Succession, he might in time have been Heir, though he was not immediate Heir; but since this can onely reach ap­pearand heirs; therefore, a Di­sposition made by one Brother to another, though the Mak­er had no Children, will not make him Successor titulo lu­crativo, since the Brother might have had heirs himself; and so his Brother was not his appear­and heir.

The Passive title holds onely in heritage; and therefore, the [Page 309] getting a right to moveable heir­ship, and tacks, will not infer the same.

Gestio pro haerede, and Succes­sor titulo lucrativo, being passive titles, whereby in odium of the irregularity of the intromission, they are made lyable as heirs; therefore, these passive titles, can extend no further, than if they intromet with, or take a disposition to these things to which they might have suc­ceeded; and so not inferred against an heir of tailzie, in­tromitting with, or getting a deposition of what would have fallen to the heir of Line; nor can they be extended further, than if they had been served heirs; and thus an heir portioner will be no further lyable in these, than pro rata, if she had entered; for the coppie [Page 310] should go no further than the original.

To conclude, the Succession Rights on Death­bed. in heritage, it is [...]it to know, that by an old statute Stat. Will. Reg. cap. 13. and our constant practique, a man cannot dispon his heritage upon death bed, in prejudice of his heirs; (that is to say, neither lands, nor heritable bands, nor any band, though Moveable, in so far as his heritage may be thereupon apprised or adjudged;) so jealous was Our Law of the importunity of Churchmen, and Friends, and of the weak­ness of mankind, under such distempers; and therefore, if a man has made any right in prejudice of his heir, after con­tracting sickness, though he was sound enough in his Iudge­ment for the time, and conti­nued sound, for a very long [Page 311] time; yet this right will be reduced, as done in lecto, or upon death bed; either at the instance of the appearand heirs, or at the instance of the apprearand heirs Creditors; and it is sufficient to prove sick­ness, though it be not proved mortal, and that he was sick, without proving that he dyed of that sickness, or was sick the very time of the dispositi­on.

If thereafter, the maker of such a right come to Kirk or mercat unsupported, the Law presumes that the Maker was reconvalasced, but since the Law has fixt upon Kirk and Mercat, as open places, where the dis­poner may be seen by all men, and by unsuspect witnesses; e­quivalent acts, as going to make visits, though at a greater di­stance [Page 312] will not be sustained; and so the deeds reconvalasce with him; But though a man cannot grant a new right upon Death-bed; yet he may per­fect an old right; or do a deed to which he might have been otherwayes compelled; as fo [...] payment of his debt, or may grant a rational Ioynter to his Wife; though he cannot grant provisions to his Children in that Condition.