alter the succession without a necessary or just consideration and so do exclude deeds fraudulent or meerly gratuitous which might evacuat the effect as to the heirs of the Marriage so that if there were heirs of the Marriage and also heirs of another Marriage the Father could not alter the Succession in favours of the heirs of another Marriage because of the interest of the Wife and the Tocher she-brings But it doth not hinder the Father to give competent portions to the Bairns of another Marriage June 19 1677. Murrays contra Murrays Neither did such a Clause of Conquest during the Marriage exclude a competent Liferent constitute to Wife of a subsequent Marriage albeit there were Bairns of the first Marriage June 16. 1676. Katherine Mitehel contra Children of Thomas Littlujohn Yet where there survived no heirs of the Marriage a provision in a Contract of Marriage that such a sum the future Spouse then had and all they should acquire during the Marriage should be taken to themselves in Conjunct-Fee and to the heirs of the Marriage whilks failzing the one half to the Mans heirs and the other half to the Womans heirs found to constitute the Man Fiar of the whole and that he might provide both the first Stock and all the Conquestro his Children of a posterior Marriage which was found no fraudulent 〈◊〉 meerly gratuitous deed December 1. and 21. 1680. Alexander Anderson contra Androw Bruce 42. Infeftments to more persons subordinat are such as are taken to Parents and after their decease to such Children and other persons named whereby the Parent is understood to be Fiar and not Liferenter and the Children or others to be Heirs substitute albeit both the Father and the Bairns named were Infeft July 23. 1675. Laird of Lambingtoun contra 〈◊〉 of Annistain But where the Band did bear a sum lent by a Father for himself and as Administrator for his Son and that the Money was the Sons and payable to the Father and after his decease to the Son was found to constitute the Son 〈◊〉 and the Father only life-renter February 14. 1667. Campbel contra Constantine 43. The third division of Infeftments is in respect of the succession and they are either simple or Tailzied Simple Infeftments are these which are taken to Heirs whatsomever for by that expression we express the lineal Heirs who according to Law would succeed in any Heretable Right But Tailzied Infeftments are where the Lands are provided to any other then the Heirs of Line as when it is provided to Heirs Male or Heirs Male of the Fiars own Body or to the Heirs of such a Marriage or to the Heirs of Titius whilks failzing to the Heirs of Seius c. Of these Tailzies there are many several ways as the Fiar pleaseth to invent and ordinarily in them all the last Member or Termination is the Heirs whatsomever of the last Branch or Person substitute or the Disponer and when that takes effect by succession the Fee which before was Tailzied becomes simple A Tailzie must necessarly be a part of the Infeftment for no write apart can constitute a Tailzie though Bonds or Contracts of Tailzie as personal or incompleat Rights may force the Contracter or his Heirs to perfect the same They must also be constitute by the Superiour being a part of the Infeftment granted by him either originally in the first Constitution of the Fee or thereafter by Resignation or Confirmation and as a Superiour is not oblieged to alter the Tenor of the first Investiture or to accept a Resignation or grant a Confirmation in any case except where it is provided by Law whereby he is necessitat to receive Appryzers and Adjudgers So neither in that case is he oblieged to constitute a Tailzie but only to receive the Appryzer or the Adjudger their heirs whatsomever unless the Debt and Decreet whereupon the same proceeded be conceived in favours of Heirs of Tailzie in which case the Appryzing or Adjudication and Infeftment thereupon must be conform unless it be otherways by consent of parties Tailzies also being Constitute are broken or changed by consent of the Superiour accepting Resignation in favours of other Heirs whether the resigner resign in favours of himself or his heirs whatsomever or in favours of any other and their heirs But most ordinarly by Appryzings or Adjudications whereby the Superiour is necessitat to receive another Vassal and his heirs though perhaps he be substitute himself as an heir of Tailzie as if it be provided that failzing other heirs there mentioned the Fee return to himself But Infeftments holden of the King have this priviledge that they are not refused either upon Resignation or Confirmation as the Fiar Purchaser pleaseth Yea it is declared by several 〈◊〉 of the Privy Council that the King or his Commissioners ought not to deny his Confirmation upon the reasonable expenses of the party which Ordinances are repeated in the Act of Parliament and though the design thereof gives not occasion to ratifie the same yet they are contained in the Narrative as Motives of that Statute and therefore are not derogat but rather approven Parl. 1578. cap. 66. And though several Kings have revocked Infeftments granted by them from heirs of Line to heirs Male and of Tailzie yet the effect of such Revocations hath never been tryed by Suite or Decision Conjunct-infeftments to Husband and Wife and their heirs are also Tailzied and though if the heirs of that Marriage be a Son and of a first Marriage he may be both heir of Line and heir of the Marriage yet may he enter as heir of the Marriage and if the Defunct had other Lands provided to heirs whatsomever he may renunce to be heir in these Lands to the effect they may be first burdened with his Fathers Debt and he or his Lands provided to the heir of the Marriage can be but burdened in the second place in subsidium of what is wanting by the Executors or Heretage befalling to heirs whatsoever much more are Infeftments Tailzied which are granted to Husband and Wife and to the Bairns of the Marriage whereby Male and Female come in pari passu Bonds taken to Parents and after their decease to such a Child nominatim whereupon Infeftment followed makes a Tailzied Fee but these are rather called heirs of provision and these are most properly called Tailzied Fees where several Branches are specially substitute one failzing another But seing heirs of Tailzie fall under consideration in the transmission of Rights by Succession we shall insist no further thereon in this place but shall proceed to consider the Clauses which are adjected in Infeftments not being of the Substantials or Solemnities thereof and how far such come in as parts of the real Right affecting singular Successors and how far they are only personal affecting alone the heirs of the Superiour or Vassal And last we shall consider the effects of Infeftments themselves As to the first beside the
THE INSTITUTIONS OF THE LAW OF SCOTLAND Deduced from its Originals and Collated vvith the Civil Canon and Feudal-Lavvs and vvith the Customs of Neighbouring Nations The first PART By Sir JAMES DALRYMPLE of STAIR PRESIDENT of the SESSION EDINBURGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1681. To the KING May it Please Your Majesty I DO humbly present to Your MAJESTY a Summary of the Laws and Customes of Your ancient Kingdom of SCOTLAND which can be no where so fitly Placed as under the Rayes of Your Royal Protection I am confident it will tend to the Honour and Renoun of Your MAJESTY and Your Princely Progenitors that You have Governed this Nation so long and so happily by such just and convenient Laws which are here offered to the view of the World in a Plain Rational and Natural Method In which Material Justice the common Law of the World is in the first place orderly deduced from self evident Principles thorow all the several private Rights thence arising And in the next place the Expedients of the most Polite Nation for Ascertaining and Expeding the Rights and Interests of Mankind are Applyed in their proper places especially these which have been invented or followed by this Nation so that a great part of what is here offered is common to most Civil Nations and is not like to be displeasing to the Judicious and Sober any where who dote not so much upon their own Customes as to think that none else are worthy of their notice There is not much here asserted upon meer Authority or Imposed for no other Reason but quia majoribus placuerunt but the Rational Motives inductive of the several Laws and Customes are therewith held forth And though the Application of those common Rules to the varietie of Cases determined by our Statutes our ancient Customes and the more recent Decisions of our Supream Courts be peculiar to us Yet even the Quadrancy of these to the common Dictates of Reason and Justice may make them the less displeasing and that no Nation hath so few words of Art but that almost all our Terms are near the Common and Vulgar Acceptation Yea the Historical Part relating the Helps and Expedients for Clearing and Securing the Rights of Men out of the Word of GOD the Moral and Judicial Law contained therein the Civil Canon and Feudal Laws and many Customes of the Neighbouring Nations Digested as they fall in with the Common Rules of Justice may probably be acceptable to these who may and will allow time for their perusal a quaint and gliding Stile much less the Flourishes of Eloquence the ordinary Condiment and Vernish which qualifie the pains of Reading could not justly be expected in a Treatise of Law which of all Subjects doth require the most Plain and Accurate Expressions to ballance which the Nausiating burden of Citations are as much as can be left out We do not pretend to be amongst the Great and Rich Kingdoms of the Earth yet we know not who can claim preference in Antiquity and Integrity being of one Blood and Lineage without mixture of any other people and have so continued above two thousand years during all which no forreign Power was ever able to setle the Dominion of a Strange Lord over us or to make us forsake our Allegeance to Your MAJESTIEs Royal Ancestors our Native and Kindlie Kings Whereas most of the other Kingdoms are Componds of Diverse Nations and have been subjugated to Princes of different and opposite Families and oftimes Forreigners The great Monarchies which did design Universalitie are all broken in pieces and there is no Familie that can claim a just Title to Redintegrat any of them There is no Emperor nor King except Your Self but knows to what other Families their Predecessors did Succeed and when and by what means It is evident what a mixture hath been in Greece and Italy in France and Spain in ENGLAND and elsewhere This Nation hath not been obscure and unknown to the World but the most famous Nations have made use of our Arms and have still in grateful remembrance retained Trophies and Monuments of our Courage and Constancy There be few Wars in Christendome wherein we have not had considerable Bodies of Souldiers Regimented and Commanded by themselves and oftimes general Officers Commanding them and whole Armies of Strangers with great Reputation and Gallantry which did advance them above the Natives of these Countreys where they served Neither have we wanted the fame of Learning at home and abroad in the most eminent Professions Divine or Humane And as every where the most Pregnant and Active Spirits applie themselves to the Study and practice of Law so these that applyed themselves to that Profession amongst us have given great Evidence of sharp and piercing Spirits with much readiness of Conception and dexterity of Expression which are necessary Qualifications both of the Bench and Bar whereby the Law of this Kingdom hath attained to so great Perfection that it may without Arrogance be compared with the Laws of any of our neighbouring Nations for we are happy in having so few and so clear Statutes Our Law is most part Consuetudinary whereby what is found inconvenient is Obliterat and forgot Our Forms are plain and Prompt whereby the generality of the Judicious have with little pains much insight in our Law and do with the more Security enjoy their Rights and Possessions which by our publick Records are better known then any where by which we may with the greatest assurance Trust our Purchase seing no Land-Right is effectual against Purchasers by Consent or by Law but where the ultimate perfection thereof by Seasing or other Evident is upon Record in Registers set apart for the several Rights without mixture of any other whereof there are Authentick Minute-books keeped with the Records in each Shire and Jurisdiction whereby with the least pains or expence all the Rights affecting any Land within the course of Prescription can easily be found We are not Involved in the Labyrinth of many and large Statutes whereof the posterior do ordinarly Abrogate or Derogate from the prior that it requires a great part of a life to be prompt in all these Windings without which no man with sincerity and confidence can Consult or Plead much less can the Subjects by their own Industrie know where to rest but must give more implicite Faith to their Judges and Lawers then they need or ought to give to their Divines and we do always prefer the Sense to the subtility of Law and do seldom trip by niecities or formalities The greatest Fixation and Improvement of our Law hath been by the Establishment of the Supream Civil Judicature of the Kingdom by King JAMES the fifth in the Institution of the Colledge of Justice consisting of fifteen ordinarie Senators in place of the Kings daily Council which followed His Residence and Court and of the Lords of Session
yet common to Mankind 7 Grass and Fruits on High-wayes are publick not common 8 In Possession what is facti what is juris 9 Possession described 10 Possession natural and civil 11 Possession of Moveables 12 Possession of the Ground 13 Possession by Limits and Bounds 14 Possession by Occupation and by lifting the Profits 15 Symbolical Possession 16 Possession by Reservation 17 Definition of Possession 18 Requisits to begin Possession 19 Requisits to retain Possession 20 How Possession is troubled interrupted or lost 21 Kinds of Possession 22 Lawful Possession gives Right to continue it against all illegal and 〈◊〉 Acts contrary thereto 23 Bonae fidei possessor facit fructus consumptos suos 24 This not extended to unlawful Possessors 25 Possessor decennalis triennalis non tenetur docere de titulo 26 Quinqutnnial Possession of forefaulted Persons 27 Possession to what Right ascriveable 28 The nature of Property 29 Property by Possession of things common 30 Appropriation by Industry 31 First Property of the Ground was of Houses and Wails 32 Next of Fields and Countreys 33 Quae nullius sunt 34 Appropriation by Accession of Birth and Fruits 35 Appropriation by 〈◊〉 36 Appropriation by Specification 37 Appropriation by necessary Conjunction 38 De tiguo injuncto 39 Inaedificata solo cedunt 40 Things sown and planted haw far-they follow the Ground 41 Posseision of Moveables presumes property 42 Reprisals 43 Enemies Goods taken in War 44 Goods of Neuters assisting Enemies become Prise TITLE XIII Infeftments of Property 1 THe original of Fees 2 Feudal Jurisdiction especially of the King in Parliament 3 Feudal Jurisdiction of Superiours 4 〈◊〉 5 Requisits of proper Fees 6 Kinds of improper Fees 7 Dominium directum essential to all Fees 8 Dominium 〈◊〉 9 Fidelity 〈◊〉 necessary 10 Feudal Contracts 11 Udal Rights 12 Infeftment what it signifies 13 How Writ is necesiary for Infeftments 14 What kinds of Writs are necessary for Infeftments 15 The 〈◊〉 of formal Charters 16 When Instruments of Sealin became necessary 17 The Tenor of formal Seasins 18 The essentials necessary in Seasins 19 Seasins must have Warrands and Adminicles and what these are 20 Registration of Seasins 21 Registration of Ressignations ad remanentiam 22 Registration of the Allowance of Apprisings and Adjudications Inhibitions and Hornings 23 The Attest of the Nottar and two Witnesses necessary in Seasins 24 Extracts of Seasins not probative 25 Transumpts of Seasins 26 Bounding Infeftments 27 Base Infeftments how far effectual without Possession 28 Infeftments by Confirmation 29 Infeftments upon Apprising or Adjudication 30 The effect of Apprisings or Adjudications with a Charge 31 Infeftments Ward 32 Feus of Ward-lands how far valid 33 Infeftments Blench 34 Infeftments Feu 35 The annexed Property of the Crown can only be set Feu after Dissolution in Parliament 36 Feus of the annexed property set with diminution of the retour'd Duty are null 37 Feus of Kirk-Lands 38 Infeftment in Burgage 39 Infeftment in Mortification 40 Manses and Gleebs 41 Conjunct Infeftments 42 Infeftments to Heirs substitute 43 Infeftments Simple and Tailzied 44 Union 45 Erection 46 Warrandice 47 Tacit Conditions implyed in Ward-Lands 48 Tacit Conditions in Warrandice and Relief 49 Tacit Conditions in Infeftments of Offices 50 Tacit Conditions in Excambion 51 Tacit Conditions in Feus 52 Liferents reserved in Infeftments of Property 53 Exceptions in Infeftments how far effectual 54 Faculties reserved in Infeftments 55 Burthens of Sums in Infeftments how far effectual 56 The effect of impossible or unlawful Conditions in Infeftments 57 Conditions inconsistent are null 58 Clause de non alienando in Tailzies 59 Clauses restrictive and irritant in Tailzies 60 Regalia not exprest are not carried by Infeftment 61 Regalia are carried in Barony though not exprest 62 Jurisdiction and Courts 63 Juriidiction of Baron Courts how far restricted 64 Issues of Baron Courts belong to themselves 65 Infeftments of Constabulary 66 Fortalices how far extended 67 Forrestries 68 Hunting of Deer inter regalia 69 Salmon-fishing 70 Cruves 71 Milns 72 Priviledge of Brewing 73 Part and Pertinent 74 Wood and Coal 75 Houses and Biggings and Park Dykes 76 Fowling Hunting and Fishing 77 Cunningars 78 Dovecotes 79 Free Ish and Entry 80 Herezelds 81 Steel-bow Goods 82 The effect of infeftments in possessorio 83 The effect of Infeftments in petitorio 84 Inhibitions and their effects against Infeftments TITLE XIV Superiority where of its Casualities Non-Entry Relief Compositions for Entries Ward Marriage and Liferent-Escheat 1 THe Superior's dominium directum 2 How Property is established in the King 3 Superiors may exerce all Acts of Property except against their Vassals 4 How the Property coming in the person of the Superior is established 5 Superiors cannot interpose betwixt them and their Vassals 6 How far Superiors need to instruct their Title 7 Superiors have personal Action against Intrometters with the Rent of the Land for their reddendo 8 They have also real Action for the same by poynding of the Ground 9 Jurisdiction of Superiors 10 Superiority carrieth to Heirs and singular Successors all bygone Casualities not separat by Gifts or Decreets 11 Superiors of Kirk-Lands need not instruct a Consent to the Surrender 12 Superiors must receive Apprisers or Adjudgers or pay the Debt salvo jure suo 13 He must receive the King's Donatar upon presentation gratis 14 He must receive his Subvassal whom his immediat Vassal resuseth to enter 15 How far Superiors may extend Gifts of their own Ward against their Vassals 16 Superiors need not accept Resignation or Confirmation and if they do it is salvo jure suo 17 Superiority falling to more persons the eldest Heir or greatest Interest only receives the Vassals 18 Non entry falls when Infeftment is not renewed by every Vassals Heir or singular Successor or upon Resignation 19 Non-entry falls by Reduction or Nullity of Infeftments or Retours 20 Burgage falls not in Non-entry as to the Burgh or particular Persons 21 The effect of the general Declarator of Non-entry 22 The effect of Non-entry after Citation in the general Declarator 23 Exceptions against Non-entry as to the Feu-duty or retoured Maill. 24 Exceptions against Non-entry as to the full Rent 25 Whether Non-entry after Ward requires Declarator 26 The original of Relief 27 The Custom of England and France as to Relief 28 The quantity of Relief with us 29 Whether Relief be due during Non-entry 30 Whether Relief is due when the Heir is entered whether the Fee be burdened with Conjunct-fee or Liferent 31 Relief stops not the Heir's Seasin 32 Compositions for the Entry of Apprisers of Adjudgers 33 The original of Ward 34 The effect of Ward as to the Heir's person 35 The effect of Ward as to the Fee 36 The Restrictions of Ward 37 The Value of the Marriage of Heirs of Ward-Vassals 38 The true Interest of Superiors in the Marriage of their Vassals 39 The single Value of Marriage not penal but favourable 40 Double Value penal
of Incorporations or persons or otherways a servitude of common Pasturage c. Therefore we shall first speak of the Right of property in Fees both in relation to the Superiour and to the Vassal Next of the Servitudes competent in Fees which comprehending all Rights not reaching the alienation or substance but the lesser interests extending only to the profits or use of Hereditaments must comprehend both the interest introduced by Law as Teinds and these that are by consent by Infeftments or other grants or long possession whether they be personal as Liferents Conjunct-fees Terces and the Right of Courtisie Annualrents Pensions Rentals Tacks c. Or whether real Servitudes as Thirlage Pasturage c. And last Feudal Pledges which are called Wodsetts But in all we are only here to speak of the constitution of Feudal Rights leaving the transmission thereof to Heirs or singular Successors to the next part Vide Title 24. and 27. 4. The property of all Lands and Immoveables or Hereditaments are either Allodial or Feudal Allodial is that whereby the right is without recognisance or acknowledgement of a Superiour having a real Right in the thing thus are Moveables enjoyed and Lands and Immoveables were so till these Feudal Customs and now there remains little Allodial For Lands holden Feu or Burgage or Lands Mortified are not Allodial seing they acknowledge a Superiour having the direct Right of property and to whom there must be some Rent or return though they be not so proper Fees as Land holden Ward Yet the Superiours Right in the Soveraign power is not Feudal but Allodial here though some Kingdoms be holden of Superiors as Feudal So also the Gleibs of Ministers seem to come nearest to Allodials having no Infeftment holding Rent or acknowledgement though they be more properly mortified Fees whereof the Liferent-escheat befalls to the King only Kirks and Kirk-yards are only Allodial without any acknowledgement of a Superiour but they are destinat for pious Uses and are ordained to be upheld and repaired Par. 1563. cap. 76. And the Parochioners of every Paroch ar ordained to build and repair Kirk-yard-dykes with Stone and Morter two els high and to make Kirk-styles therein Par. 1597. cap. 232. The manner of reparing Kirks was remitted to the Council by the said first Act of Parliament and thereupon an Act of Council was made which is ratified Par. 1572. cap. 54. but is not repeated in the Ratification but only in general that the Parochioners were warranted to name persons to stent the Neighbours A Fee signifieth either the right it self or the thing affected with the Right whether it be corporeal as Lands Lochs Woods Fortalices Milns or incorporeal as Annualrents Fishing Jurisdiction Pasturage or the like and at the first it was freely granted for Fidelity and Military service of the Vassal 5. And therefore it implyed first That it was a free and gratuitous Donation as to Money or other anterior cause and only for fidelity and service Secondly None could succeed therein but such as could perform that service whereby women were excluded Thirdly It could descend to none but to the Male Issue of the first Vassals body which ceassing it became void and could not be transmitted to the Collaterals or to the Ascendents of the first Vassal Fourthly Whensoever it was open or void by the death of the Vassal Infeft it returned to the Superiour until the Vassals Heir were capable of Military Service which was esteemed to be so soon as he attained Majority And while it was in non-entry by the negligence of the Vassal not demanding Infeftment but in his Minority when he was unable to serve both the Lands and the Vassal were in the hands of the Superiour in Ward and Custody or of his Donatar as his Legal Tutor who was to educat him for his own service and to intertain him beside which he had then no other profit of his Fee And if he married without the Superiours consent he lost a sum equivalent to that Tocher which were suitable to his Quality and Estate And if contrary his Superiours will he refused a suitable Match he forefaults the double of the Tocher The reason introductory of this was because the Superiour might be concerned in the affinity contracted by his Vassal in his marriage In all Fees fidelity by the Vassal to his Superiour is necessarly implyed and if any thing were acted contrary to fidelity and gratitude against the life and fame of the Superiour to the great prejudice of his Estate or nearest Relations the Fee became void wherein is also comprehended the Vassals disclaiming of his Superiour or owning another in his place or Infefting another Vassal without his Superiours consent Fees are not only unalienable without consent of the Superiour for the reasons now adduced but they are stricti juris and there is no obliegement upon the Superiour to receive any stranger or singular successor his Vassal except what the Law hath introduced by Statute or Custom in favours of Creditors for obtaining satisfaction of their Debts by Appryzings or Adjudication whereby the superiour may be compelled to receive singular successors Yet the Disposition procuratory or precept of seasing before Infeftment are asignable and the superiour may be compelled to receive the Assigney if the Disposition be in favours of Assigneys But Infeftment being once taken he is not oblieged to receive any Assigney or singular successors otherways then in obedience of Horning upon Appryzing or Adjudication getting a years Rent for accepting a new Vassal 6. These being the ancient requisits of Fees that is a proper Fee which hath them and the want of any of them makes it Improperin so far but most of them might always and now are changed by the Tenor of the Infeftment as when the Fee is granted to the Vassal and the Heirs of his body it is so far improper that women may succeed If it begranted to him and his Heirs simply then his Collateral Heirs or Ascendents may succeed Or if to his Heirs male whatsoever much more if to the Heirs or Descendents of other persons in Tailzies Fees are also granted not for Military service or service indefinitly but for some definite particular service as for carrying of a Sword or other Ensign of Honour before the Superiour in solemn days or not for service at all but for some Rent which is either inconsiderable as a meer acknowledgement of the Superiour as a penny Money or a grain of Pepper a Rose c. Or for a Feu-ferm-duty in Money or any Fungible or other performance Or when the avail of the Marriage and profit of the Ward is taxed to such a sum Hence we may consider what remains as to the essentials of Fees and common interests thereof which are these 7. First there must remain a right in the Superiour which is called dominium directum and withal a Right in the Vassal called dominium utile The reason of the distinction and terms thereof
Lords of Erection have presented which was largely debated in November 1677. concerning the Patronage of the Kirk of Allan whereunto the Laird of Watertoun had presented as deriving Right to an erection prior to the Act of Annexation and having desired from the Council Letters to Charge the Bishop to grant Collation upon the foresaid Act of Parliament ordaining Bishops to try and Collate upon the Patrons presentation the matter was remitted by the Privy Council to the Lords of Session in respect that the Officers of State did claim right to that patronage as belonging to the King whereupon the Lords did at first sist any further progress in admitting either the person presented by the King or by Watertoun till the matter were discussed but after hearing the Cause at length in their presence Wattertoun having alledged that his Author had an erection bearing the Patronage of this Kirk per expressum and that such Patronages were not annexed to the Crown because they were not comprehended in the Abbots Rights such Kirks not being then Patronat but Patrimonial and that the King in his Decrect Arbitral had determined nothing anent Patronages but that the Lords of erection had always enjoyed the same and that the Lords of erection retaining the right of the Teinds the patronage belong to them as consequent to the Teinds out of which the provisions for the Kirk is payable and it being answered for the King that though the Abbots had not the formal Right of presentation because the Kirks were not then patronat yet they had the right of Nomination or substitution of the Viccars who served in these Kirks in place of whom are now the Stipendiary Ministers these new patronages arise form the Dissolution of these Abbacies into distinct parochs must belong to the King and the power of nomination or presentation of these Stipendiars was comprehended in and annexed with these Benefices to the Crown by the first Act of Annexation but especially by the Annexations 1633. whereby upon the surrender of the Lords of erection of all their Rights and specially of their Patronages the King by his Decreet Arbitral had decerned to them only ten years purchase for the Feu-duty and nine years purchase for the Teind they could pretend to no more and so to no right of Patronage Likeas the King in the Interruption made by the 12 Act of Parliament 1633. did expressly declare that he will insist in his general Revocation as to the particulars enumerat in the Act of Interruption whereof patronage is one In this debate the Lords being desirous that the matter might be determined upon the clearest grounds and to know if prescription had cleared the matter and either party having alledged possession the Lords before answer Ordained either party to adduce all the evidence they could whether the King or Wattertoun and his authors had been in possession how long and what way TITLE XIX TACKS Where of Rentals tacite Relocation and Removing 1. The nature of Tacks 2. How Tacks become as real Right effectual against singular Successors 3. Who may grant Tacks 4. How Tacks may be set 5. The tenor of Tacks 6. The effect of obliegements to set tacks 7. Tacks become real Rights by possession 8. Tacks in Wodests after Redemption become valid 9. The extent and effects of Tacks 10. Tacks-men in possession need not dispute the setters right disputing as Heretable proprietar 11. The effect of Tacks whereof the Tack duty is payable to Creditors 12. Tacks are good active Titles for Mails and Duties 13. The effect of Tacks set to Husband and Wife 14. Kinds of Tacks 15. Rentals 16. The effect of Assignations or Sub-tacks of Rentals or other Tacks 17. The effect of Sub-tacks as to Tutors and Donatars 18. The effect of Rentals in Court Books or Rental Books only 19. The endurance of Rentals 20. The effect of Grassoums 21. How far Rentals become void by Alegnation Assignation or Subtack 22. Defect of Sub-tacks 23. Tacite Relocation 24. How Tacks fall in escheat 25. Tacks sleep during Ward and Non-entry of the setter and are valid against his LiferentEsheat 26. Tacks are Strictissimi juris and extend not to Heirs or voluntary Assignays or Sub-tacks or Removing but when exprest except Tacks for Liferent or equivalent 27. Tacks without Ish are null 28. How far Tacks to endure till a sum be payed are valid 29. Tacks are null without a Tack Duty 30. Tacks are valid though not expressing the Entry 31. Tennents must labour and not waste or open the ground for any Minerals 32. Tacks become void by two years not payment of the Tack-Duty 33. Or for not finding Caution to pay the Tack-duty bygome and in time to come 34. Or by the Tennents Renounciation 35. By contrary consent of both parties 36. By deeds contrary to the Tack 37. Or by removing 38. Summar Removing without warning in what cases 39. The old way of Removing Tennents 40. Warning of Tennents to Remove 41. The active Title in Removeings 42. Exceptions against Removings not instantly Verified are not receiveable till Caution be found for the Violent profites 43. Defences against Removing and replys thereto 44. Violent profites 45. Succeeding in the Vice of Tennents Removed 1. ATACk of it self is no more then a personal Contract of Location whereby Land or any other thing having profite or fruit is set to the Tacks-man for enjoying the fruit or profite thereof for a hyre which is called the Tack-duty which therefore did only obliege the Setter and his Heirs to make it effectual to the Tacks-man but did not introduce any real Right affecting the thing set and carried therewith to singular Successours 2. But so soon as the thing set ceassed to be the setters the Tacks could not reach it Thus it was with us tillthe Statute Par. 1449. cap. 18. whereby purchasers and singular Successors were disenabled to brake the Tacks set to the Tennents By this Statute Tacks become as real Rights affecting the ground And because they cannot come the length to be esteemed as Rights of Property they are ranked here amongst Servitudes personal for as Liferent-rights are real Rights putting a Servitude upon Hereditaments to the person of the Liferenter during life whereof a Liferent-tack is a kind so other Tacks do subject the thing set to the Tacks-man for a time and affect the same though it pass to singular Successors albeit the Statute only expresseth that buyers shall not break Tacks and is in favours of the poor Labourers of the ground for whose security it was chiefly intended yet it is extended against all singular Successors whether by Sale Exchange Appryzing Adjudication or any other way as the Statute beares in whose hands soever the Lands come and also in favours of all Tacks-men whether they be labourers of the ground or not whereby Tacks are now become the most ordinary and important Rights and if the great favour of this Statute made them not in other thingsto be strictly
they be done before year and day expire being after the Rebellion And so Arrestments or Assignations even though before Rebellion have no effect after year and day is run because these being but Personal and Liferent-escheat a reall Right flowing from the Superiority whereby the Vassal is denuded of the Liferent Therefore the effect of these Personal rights ceaseth But all reall rights flowing from the Vassal before the Rebellion as Fews Annualrents Tacks Appryzings and Adjudications whereupon there was a Charge are effectual and not excluded by Liferent-escheat though these are excluded by Ward which is a Casuality following the nature of Fewdal Rights Whereas Liferent-escheat ariseth not from the Nature of Fies but is introduced by Law or Custom and therefore the Fie falls in the hands of the Superior as it was in the hands of the Vassal with all the Real burdens he had fixed upon it Neither does Posterior voluntary Infeftments though for debts prior to the Rebellion and granted before Declarator exclude the Liferent-escheat Jannuary 18. 1611. Samuel Ord contra the Laird of Craigkeith The like where the Infeftment was granted after Rebellion but within year and day January 23. 1627. James Wallace contra Thomas Porteous Where there is an exception insinuat unless there had been an prior obliegment before the Rebellion to grant thelnfeftment as if in that case though in cursu Rebellionis it would be sufficient to exclude the Liferent The like was found that Infeftments upon a voluntary Disposition made in cursu Rebellionis within the year and for a debt due before Rebellion excluded not the Liferent-escheat March 19. 1628. Mr James Rae contra Buckie Hope Horning Laird of Frendraught contra Meldrum Gordon of 〈◊〉 contra Gordon of Haddo But Infeftments in cursu Rebellionis upon special obliegments to grant the same before Denuneiation are valid vide Tit. 14. § 53. As to Legal Diligences of Creditors whither Appryzing and Infeftment thereupon being after Rebellion will exclude the Liferent-escheat was declared the last Title in the second effect of Appryzings the sum whereof is that they are thus far preferablé to voluntary Dispositions That being done in Cursu Rebellionis for a debt before Rebellion There being Infeftment or Charge in cursu Rebellionis they exclude the Liferent Secondly Single-escheats require general and special Declarator Liferent-escheats require but one Declarator for all wherein the Title is the Horning the Gift and the Superiors Seasine without farder instructing the Superiors Right and without Continuation July 2. 1622. Carmichael contra Lermont March 6. 1624. Dowglas contra Eastnesbit June 23. 1625. Viscount of Stormont contra And there is no necessity to instruct the Lands holden of that Superior by the Defender The reason is because that is presumed unless the Defender disclame or that the Superior be a Singlar Successor never acknowledged by the Vassal or his Predecessors 27. Shipwrack and Wath Goods or Treasures in the ground whose owner appeareth not are Confiscat as Caduciarie whereby the owners are presumed to Relinquish or loose the same And so a jure sup cadunt and the things become nullius and yet belong not to the first Possessor as things relinquished do by the Common Law but do belong to the King by his Royal Prerogative or to others having Right from him We have spoken of these before in the Title Real Rights And shall only add this that by that just and Noble Statute Par. 1429. cap. 124. It is declared that where Ships break in this Countrey the Ship and Goods shall be escheat to the King if they belong to such Countries as use the like Law anent Ship-wrack in there own Land otherwayes they shall have the same favour as they keep to Ships of this Land broken with them It is also declared amongst the Statutes of King Alexander the Second cap. 25. That if any Living Man or Beast as Dog Cat c. come quick out of the Vessel the same shall not be accounted Ship-wrack but shall be preserved to the Owner claming and instructing his Right within year and day Or otherwayes it shall belong to the King So was it found where an ox escaped alive out of the Ship and the Admirals Decreet finding the same Escheatable as Shipwrack was Suspended Simpliciter December 12. 1622. Hamilton contra Cochran In which case nothing was alleiged but this old Statute the genuine meaning whereof seems only to be where any person came to Land the Ship and Goods should not be confiscat as Wrack but the posterior Act Par. 1429. cap. 124. Repeats not that provision but regulats the matter according to the custom of other Nations to do to them as they do to us without any other Limitation And therefore where some Persons came to Land the Ship being broken the same with the Goods dispersed were Confiscat If Confiscation in the like case should be proven to be the Law or Custom of that place to which the Ship belonged January 20. 1674. Jacobson contra Earl of Crawfoord 28. Forefaulture is the great Confiscation comprehending all other Penal Confiscations It is extended to the taking away of Life Lands and Goods Par. 1424. cap. 3. For it is the Penaltie of the highest Crime to wit Treason which at first and by its native Signification it expresseth Crymes against the Life of any partie under Trust So the Slaughter of any person under Trust Credit or power of the Slayer is declared Treason Par. 1587. cap. 51. 29. Thence it is also called Treachery and the Committers thereof Traitors And because of that Trust betwixt the King and all the Leiges as their Superiour and Soveraign The chief point of Treason is against the Kings Person as appeareth by the Act last Cited These also who without cause wilfully raise a fray in the Kings Host commit Treason Par. 1455. cap. 54. Upon the same ground because of the Trust betwixt the Superiour and his Vassal such Crimes against the Superiour is also called Treason and thereby the committer Looseth for ever all Lands and Heritage he held of that Sùperiour quoniam Atachiamenta cap. 19. But this Treason infers not a Simple Forfaulture but only is a ground of Recognition But as now the Terms are take Treason and Forefalture of Life Lands and Goods are adequat and wherever the one is exprest in any Act of Parliament the other is understood for the Stryking or Slaying of any person within the Parliament House during the time of Parliament within the Kings Inner-Chamber Cabinet or Chamber of Peace the King being within his Palace or within the Inner-tolbooth the time of Session sitting or within the Privy Council-House the time of the Council sitting or in his Majesties Presence any where is declared Treason Par. 1593. cap. 173. Impugning the Dignity or Authority of the three Estates of Parliament or procuring any Innovation or Diminution of there Power is prohibit under pain of Treason Par. 1584. cap. 139. And also declyning the King and
but Moveables The next Degree of the nearest of Kin is Brothers and Sisters german and failing these Brothers or Sisters by the Father's side only or their nearest Descendents of the same Degree without Right of Representation As to the third Degree of Succession in Moveables failing Descendents and Brothers and Sisters and their Descendents the Question is Whether the Father surviving will exclude his own Brother or if there be any place for Ascendents in the Succession of Moveables Such Cases occur rarely and I have not observed it debated or decyded It is but of late since the like Case hath fallen in the Succession of Heirs and Heritable Rights wherein our Custom hath according to the course of the Law of Nature found the Father to be Heir to his Son and not the Father-brother or any of his Descendents and in that have differed from the Custom of England And there is no reason why if the Question should occurr that the like should not be done in Moveables The next Degree is the Father's Brethren and Sisters german which failing the Father's Brethren and Sisters by the same Grand-father and their Descendents in the next Degree In all which both Bloods exclude one Blood And if there be no Agnat or Kinsfolk found who can instruct their propinquity of Blood the Goods become caduciary and confiscat and belong to the King as ultimus haeres who and his Donatar have the same interest that the nearest of Kin would have had Vide Title Confiscation Section Ultimus hares Children in familia have not only the common Right as nearest of Kin but have their legittime Portion called the Bairns part in which their Father cannot by Testament Legacy or Donation ' mortis causâ prejudge them or by any other Deed on Death-bed By the Premises it appears that the whole power of Defuncts as to Succession in their Moveables is to nominate Executors and give Legacies 33. The Nomination of Executors is properly called a Testament Additions thereto or Alterations thereof are Codicils Legacies may be left whether there be Testaments or not and either in the Testament Codicils or apart but all is ambulatory during the Defunct's Life and may be taken away expresly or implicitely by posterior or derogatory Deeds unless the Defunct be obliged by Contract inter vivos not to alter the same In which case Contract and Paction doth so far over-rule the power of testing that posterior Deeds whether expresly or implicitely altering would be ineffectual like to that Obligement to leave a Legacy which was found an effectual Legacy without further Solemnity January 30. 1631. Houstoun contra Houstoun 34. The effect of Testaments being so small the Solemnities thereof are no other than what are requisit to accomplish any other Writ For two Witnesses suffice and if the Testament be holograph it is valid Or if the Testator cannot or be not able through Sickness to write a Testament will be sufficient by a Notar and two Witnesses notwithstanding the Act of Parliament 1579. cap. 8. requiring to Writs of importance two Notars and four Witnesses which holds not in Testaments though containing matter of great importance 18. of January 1623. Bog contra Robert Hepburn Yea Ministers are authorized as Notars in the case of Testaments Par. 1584. cap. 133. The reason here of is because Ministers are ordinarly with sick Persons the time of their Death Nuncupative Testaments are not of force in Scotland For though Legacies left within an hundred pounds may be nuncupative without Writ yet the Nomination will not so subsist nor be respected by the Commissaries And therefore a verbal Testament taking away a formal Legacy subscrived but by initial Letters was not sustained though made at Sea and so in a Case of necessity and not admitted to be proven by Witnesses in the Ship Feb. 18. 1631. Houstoun contra Houstoun 35. The effect of Testaments is not greater though made in England the Testator residing there and so extends not to an Heretable Sum due in Scotland left in Legacy by the Testator being a Scots-man July 3. 1634. Melvil contra Drummond Hope Testaments Purves contra Chisholm Executors of Collonel Henrison ibid. Neither do nuncupative Testaments of Scots-men though residing animo remanendi abroad and dying there have any effect with us albeit nuncupative Testaments be valid according to the Law and Custom of that Place For albeit the Custom of the Place may supply the Solemnity of any Writs or Evidents for instructing a Right as Writs made abroad by Nottaries and Tabellions are valid though not done according to the Law of Scotland which requires two Notars and four Witnesses in Writs of importance yet the Custom of those Places cannot constitute any Right of Succession not allowed by the Law of Scotland And therefore William Schaw Factor and Residenter in London having lived and died there in the House of one Mary Lewins who had confirmed in England a nuncupative Testament whereby he had designed her as Executrix and Legatrix and the nearest of Kin of the said William having confirmed themselves Executors to him in Scotland and the competition being betwixt them the Lords preferred the Executors confirmed in Scotland and had no respect to the nuncupative Testament as having no effect by the Law of Scotland January 19. 1665. Schaw contra Lewins 36. The like Solemnities will be sufficient for Codicils and Legacies A nuncupative Legacy within an hundred pounds is probable by Witnesses November 24. 1609. Russel contra July 7. 1629. Wallace contra Mure. Where a greater Legacy left by word restricted to an hundred pounds was found so probable 37. The power of Testing is competent to all Persons who have the use of Reason though Minors having Curators not consenting Wives cled with Husbands without their consent Persons interdicted without consent of the Interdicters but not to Pupils Idiots furious Persons in their Furiosity neither to Bastards not having lawful Issue or testamenti factionem by the Kings Gift as in the former Case Wallace contra Mure. Vide Tit. Confiscation § Bastardry 38. Legacies are either particular or universal general or special Universal Legacies are when the whole Moveables in so far as is in the Defunct's disposal and not left by particular Legacies is legat and so it is legalum per universitatem and like to the Succession of an Heir Special Legacies are where some Individual is left as such a Horse Cloaths c. or such a Sum due by such a Person whereby the Property is stated in the Legatar and at most but the Possession or Custody in the Executor And therefore the Legatar may pursue for Delivery or Payment of the special Legacy against the Havers or Debitors but he must call the Executor that his interest may be preserved least the Debts exhaust even the special Legacy Upon which consideration the Lords sustained not a Pursuit upon a special Legacy leaving a Sum due by such a Person in such a Bond pursued against
who came in their place and were nominated of the Estates of Parliament Ambulatory and the Senators of the Colledge of Justice were Invested with the powers of both and their persons and the place of Judicature became fixed and hath so continued near the space of an hundred and fifty Years This Court was much improven by Your MAJESTIEs Royal Grand-Father who delighted exceedingly in it and honouredit frequently with His Presence while He was in Scotland So did Your Royal Father when He came to Scotland to be Crowned And Your MAJESTY hath owned and encouraged it more then any Your MAJESTY doth not demand or expect great Revenues from this Kingdom that which we can be useful in to Your MAJESTY is our personal Service and our firm adherence to Your Crown and Monarchy and to Your Royal Family in which we have a peculiar Interest and which no time can communicate to any of Your other Dominions which they neither can claim nor should invy that You are of our Nation and hath Governed us during twenty Centuries and more and by us You are the most Ancient King in the World which is the most Noble and Resplendent Jewel in Your Crown What Family on Earth can parallel that Motto which an hundred Years ago was Written about Your Royal Ensignes upon Your Palace Nobis haec invicta miserunt Centum sex proavi Therefore Your Royal Family hath been betroathed to a Virgin Crown which never knew another Husband and though it hath been darkened with Clouds and Recesses yet never was and I hope never shall be in Widuity The mutual Affection betwixt Your MAJESTIES Royal Family and this Nation is a prime Interest to both which should be much incouraged and improven Your MAJESTY without just ground of Jealousie to Your other Kingdoms may own a peculiar Care of us and weought to 〈◊〉 a singular kindness to and confidence in Your MAJESTY and Your Royal Successors This might he so promoved that Your MAJESTY might by Treaties have Armies of this Nation abroad Intertained without Your Charge and ready at Your Call as You had Dowglas Regiment in France which might secure Your Peace at Home and make You stand in need of less Aids from Your People You might also have thriving Plantations abroad if these who every year go from this Nation to seek their Fortunes abroad were directed and encouraged And it is certainly a great Interest to keep the Nation at Home in constant Affection INDEX of the TITLES of the whole BOOK with the SUMMARIES subjoyned PART I. TITLE I. Common Principles of Law 1 DEscription of Law 2 Description and Division of Justice 3 Divine Law 4 Reason 5 Conscience 6 Equity 7 Moral Law 8 Positive Laws of God 9 Judicial Law 10 Law of Nations 11 Civil Law 12 Feudal Law 13 Canon Law 14 The reasons of Humane Laws 15 The Law of Scotland 16 Whether Law may be handled as a rational Discipline 17 Three common principles of Equity and three of positive Law 18 Obedience 19 Freedom 20 Ingagement 21 Description and Division of Rights 22 Method of the Civil Law and the method here proposed TITLE II. Of Liberty 1 LIberty described 2 Liberty 〈◊〉 from Dominion and Obligations 3 The Principle whence Liberty ariseth 4 Restraint and Constraint 5 Liberty is bounded by Obedience 6 It is diminished by Delinquence 7 By Ingagements 8 By subjection 9 Liberty is lost by Bondage 10 Bondage introduced by the Law of Nations 11 Bondage lawful 12 Manrent 13 Manumission 14 Patronage 15 The condition of our Servants 16 Injuries agaiost Liberty how obviat TITLE III. Of Obligations 1 PErsonal Rights and Obligations described 2 Kinds of Obligations 3 Obediential Obligations described 4 Divided 5 Enumerat 6 Obligations Natural and Civil 7 Obligations principal and accessory 8 Obligations pure conditional and to a day TITLE IV. Conjugal Obligations 1 MArriage a divine Contract 2 Whereby Marriage is formally constitute 3 Dissolution of Marriage by Death 4 Desertion and Adherence 5 Jus Mariti 6 The Husbands Obligations 7 The power of the Husband by the Civil Law 8 By the Custom of neigbour Nations 9 By the Custom of Scotland 10 The Wife's Escheat 11 The Husband 's concourse 12 A Wife's Obligation null 13 A Communion of Goods and Debts 14 Donations betwixt Man and Wife revocable 15 Dissolution of Marriage within the year 16 Divorce 17 Rights arising from the Dissolution of Marriage 18 Priviledges of Wives TITLE V. Obligations between Parents and Children 1 OBligations betwixt Parents and Children are Divine by the Law of Nature 2 The Power of Parents over their Children 3 In Infancy 4 In Minority 5 In Majority 6 Oeconomical Government 7 Provision of Children 8 Obligations of Children to their Parents 9 Aliment due to Parents 10 Obligations mutual of Children 11 Patria potestas amongst the Romans 12 Amongst other Nations especially as lawful Administrations 13 Forissawiliation and Emancipation TITLE VI. Obligations of Tutors and Curators Pupils Minors and Persons interdicted 1 THe rise of Tutory in the Law of Nature 2 Order of Tutory by the Law of Nature 3 The natural Obligation of Tutors 4 Pupils Obligations to their Tutors 5 Kinds of Tutors by the Common Law 6 Tutors Testamentar 7 Tutors Testamentar exclude all others 8 Tutors of Law who 9 How Tutors of Law are entered 10 The Time within which they must enter 11 Tutors Dative 12 Pre-Tutors 13 Factors for Tutors 14 Con-Tutors 15 Tutors custody of the Pupil's Person 16 Tutors authorizing their Pupils 17 Tutors or their Factors Rightsrelating to the Pupils accresce to them 18 Tutors can only do necessary not free arbitrary Deeds but may not sell Lands sine authoritate judicis 19 Tutors are lyable for Annualrent for their pupils means 20 Tutors are conveenable with their Pupils and lyable in quantum intus babent 21 Tutors Accompts 22 Tutors are lyable for exact Diligence both for Intromission and Omission 23 Tutors are lyable in solidum 24 Tutory how finished 25 Tutors of Idiots furious Persons 26 Gesta Tutarum accrescunt pupillis 27 Removing or suspect Tutors 28 Duty of Pupils to their Tutors 29 Rise of Curators 30 Curators ad lites negotia 31 Minors may at their option choose or not choose their Curators 32 Minors Deeds having Curators without their consent are ipso jure null nisi in quantum 〈◊〉 33 Curators Consent not requisit to Later-Wills 34 Restitution of Minors upon enorme lesion 35 Minor non tenetur placuare super 〈◊〉 paternam 36 Differences betwixt Tutors and Curators 37 Duty of Curators 38 Curators or Interdictors for Prodigals or lavish Persons 39 Interdictors constitute causâ cognitâ 40 Interdiction by Parents Consent 41 Publication and Registration of Interdictions 42 Interdictions extend only to heritable Rights not Moveables nor to personal Executions 43 Interdictions are only competent by way of Reduction 44 Interdictions cannot be taken off but by authority of a Judge TITLE VII Restitution 1 REstitution of other