REDRESS, effected by the mere operation of law, is, 1. In the case of retainer; where a creditor is executor or administrator, and is thereupon allowed to retain his own debt. 2. In the case of remitter; where one, who has a good title to lands, &c. comes into possession by a bad one, and is thereupon remitted to his ancient good title, which protects his ill-acquired possession.
xxvii. SECT. III. Of courts in general.
(1.) REDRESS, that is effected by the act both of law and of the parties, is by suit or action in the courts of justice.
(2.) Herein may be considered, 1. The courts themselves. 2. The cognisance of wrongs or injuries therein. And, of courts, 1. Their nature and incidents. 2. Their several species.
(3.) A court is a place wherein justice is judicially administered, by officers delegated by the crown; being a court either of record, or not of record.
(4.) Incident to all courts are a plaintiff, defendant, and judge; and, with us, there are also usually attor-
VOL. IX. Part II.
neys; and advocates or counsel, viz. either barristers or serjeants at law.
SECT. IV. Of the public courts of common law and equity.
(1.) COURTS of justice, with regard to their several species, are, 1. Of a public, or general, jurisdiction throughout the realm. 2. Of a private, or special, jurisdiction.
(2.) Public courts of justice are, 1. The courts of common law and equity. 2. The ecclesiastical courts. 3. The military courts. 4. The maritime courts.
(3.) The general and public courts of common law and equity are, 1. The court of piepowder. 2. The court-baron. 3. The hundred court. 4. The county court. 5. The court of common pleas. 6. The court of king's bench. 7. The court of exchequer. 8. The court of chancery. (Which two last are courts of equity as well as law). 9. The courts of exchequer-chamber. 10. The house of peers. To which may be added, as auxiliaries, 11. The courts of assize and nisi prius.
SECT. V. Of courts ecclesiastical, military, and maritime.
(1.) ECCLESIASTICAL courts (which were separated from the temporal by William the Conqueror), or courts Christian, are, 1. The court of the archdeacon. 2. The court of the bishop's confitoy. 3. The court of arches. 4. The court of peculiars. 5. The prerogative court. 6. The court of delegates. 7. The court of review.
(2.) The only permanent military court is that of chivalry; the courts martial, annually established by act of parliament, being only temporary.
(3.) Maritime courts are, 1. The court of admiralty and vice admiralty. 2. The court of delegates. 3. The lords of the privy council, and others, authorised by the king's commission, for appeals in prize-causes.
SECT. VI. Of courts of a special jurisdiction.
COURTS of a special or private jurisdiction are, 1. The forest courts; including the courts of attachments, regard, swienmote, and justice feat. 2. The court of commissioners of sewers. 3. The court of policies of assurance. 4. The court of the marshalsea and the palace court. 5. The courts of the principality of Wales. 6. The court of the duchy chamber of Lancaster. 7. The courts of the counties palatine, and other royal franchises. 8. The flannery courts. 9. The courts of London, and other corporations:—To which may be referred the courts of requests or courts of conscience; and the modern regulations of certain courts baron and county courts. 10. The courts of the two universities.
SECT. VII. Of the cognisance of private wrongs.
(1.) ALL private wrongs or civil injuries are cognisable either in the courts ecclesiastical, military, maritime, or those of common law.
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(2.)
(2.) Injuries cognisable in the ecclesiastical courts are,
1. Pecuniary. 2. Matrimonial. 3. Testamentary.
(3.) Pecuniary injuries, here cognisable, are, 1. Subtraction of tithes. For which the remedy is by suit to compel their payment, or an equivalent; and also their double value. 2. Nonpayment of ecclesiastical dues. Remedy: by suit for payment. 3. Spoliation. Remedy: by suit for restitution. 4. Dilapidations. Remedy: by suit for damages. 5. Non-repair of the church, &c.; and non-payment of church-rates. Remedy: by suit to compel them.
(4.) Matrimonial injuries are, 1. Facilitation of marriage. Remedy: by suit for perpetual silence. 2. Subtraction of conjugal rights. Remedy: by suit for restitution. 3. Inability for the marriage state. Remedy: by suit for divorce. 4. Refusal of decent maintenance to the wife. Remedy: by suit for alimony.
(5.) Testamentary injuries are, 1. Disputing the validity of wills. Remedy: by suit to establish them. 2. Obstructing of administrations. Remedy: by suit for the granting them. 3. Subtraction of legacies. Remedy: by suit for the payment.
(6.) The course of proceedings herein is much conformed to the civil and canon law: but their only compulsive process is that of excommunication; which is enforced by the temporal writ of significavit, or de excommunicato capiendo.
(7.) Civil injuries, cognisable in the court military, or court of chivalry, are, 1. Injuries in point of honour. Remedy: by suit for honourable amends. 2. Encroachments in coat-armour, &c. Remedy: by suit to remove them. The proceedings are in a summary method.
(8.) Civil injuries cognisable in the courts maritime, are injuries, in their nature of common-law cognisance, but arising wholly upon the sea, and not within the precincts of any county. The proceedings are herein also much conformed to the civil law.
(9.) All other injuries are cognisable only in the courts of common law: of which in the remainder of this chapter.
(10.) Two of them are, however, commisable by these and other inferior courts; viz. 1. Refusal, or neglect, of justice. Remedies: by writ of procedendo, or mandamus. 2. Encroachment of jurisdiction. Remedy: by writ of prohibition.
(1.) In treating of the cognisance of injuries by the courts of common law, may be considered, 1. The injuries themselves, and their respective remedies. 2. The pursuit of those remedies in the several courts.
(2.) Injuries between subject and subject, cognisable by the courts of common law, are in general remedied by putting the party injured into possession of that right whereof he is unjustly deprived.
(3.) This is effected, 1. By delivery of the thing detained to the rightful owner. 2. Where that remedy is either impossible or inadequate, by giving the party injured a satisfaction in damages.
(4.) The instruments, by which these remedies may be obtained, are suits or actions; which are defined to
be the legal demand of one's right: and these are, 1. Personal. 2. Real. 3. Mixed.
(5.) Injuries (whereof some are with, others without, force) are, 1. Injuries to the rights of persons. 2. Injuries to the rights of property. And the former are, 1. Injuries to the absolute. 2. Injuries to the relative, rights of persons.
(6.) The absolute rights of individuals are, 1. Personal security. 2. Personal liberty. 3. Private property. (See Chap. I. Sect. 1.) To which the injuries must be correspondent.
(7.) Injuries to personal security are, 1. Against a man's life. 2. Against his limbs. 3. Against his body. 4. Against his health. 5. Against his reputation.—The first must be referred to the next chapter.
(8.) Injuries to the limbs and body, are, 1. Threats. 2. Assaults. 3. Battery. 4. Wounding. 5. Mayhem. Remedy: by action of trespass, vi et armis; for damages.
(9.) Injuries to health, by any unwholesome practices, are remedied by a special action of trespass, on the case; for damages.
(10.) Injuries to reputation are, 1. Slanderous and malicious words. Remedy: by action on the case; for damages. 2. Libels. Remedy: the same. 3. Malicious prosecutions. Remedy: by action of conspiracy, or on the case; for damages.
(11.) The sole injury to personal liberty is false imprisonment. Remedies: 1. By writ of, 1st, Mainprize; 2dly, Odio et alia; 3dly, Homine replegiando. 4thly, Habeas corpus; to remove the wrong. 2. By action of trespass; to recover damages.
(12.) For injuries to private property, see the next section.
(13.) Injuries to relative rights affect, 1. Husbands. 2. Parents. 3. Guardians. 4. Masters.
(14.) Injuries to an husband are, 1. Abduction, or taking away his wife. Remedy: by action of trespass, de uxore rapta et abducta; to recover possession of his wife, and damages. 2. Criminal conversation with her. Remedy: by action on the case; for damages. 3. Beating her. Remedy: by action on the case, per quod consortium amisit; for damages.
(15.) The only injury to a parent or guardian is the abduction of their children or wards. Remedy: by action of trespass, de filius, vel custodis, rapis vel abductis; to recover possession of them, and damages.
(16.) Injuries to a master are, 1. Retaining his servants. Remedy: by action on the case; for damages. 2. Beating them. Remedy: by action on the case, per quod servitium amisit; for damages.
(1.) Injuries to the rights of property are either to those of personal or real property.
(2.) Personal property is either in possession or in action.
(3.) Injuries to personal property in possession are, 1. By dispossession. 2. By damage, while the owner remains in possession.
(4.) Dispossession may be effected, 1. By an unlawful taking. 2. By an unlawful detaining.
(5.) For the unlawful taking of goods and chattels personal,
personal, the remedy is, 1. Actual restitution, which (in case of a wrongful distress) is obtained by action of replevin. 3. Satisfaction in damages: 1st, in case of rescous, by action of rescous, poundbreach, or on the case; 2dly, in case of other unlawful takings, by action of trespass or trover.
(6.) For the unlawful detaining of goods lawfully taken, the remedy is also, 1. Actual restitution; by action of replevin or detinue. 2. Satisfaction in damages: by action on the case, for trover and conversion.
(7.) For damage to personal property, while in the owner's possession, the remedy is in damages; by action of trespass vi et armis, in case the act be immediately injurious; or by action of trespass on the case, to redress consequential damage.
(8.) Injuries to personal property, in action, arise by breach of contracts, 1. Express. 2. Implied.
(9.) Breaches of express contracts are, 1. By non-payment of debts. Remedy: 1st, Specific payment; recoverable by action of debt. 2dly, Damages for non-payment; recoverable by action on the case. 2. By nonperformance of covenants. Remedy: by action of covenant, 1st, to recover damages, in covenants personal; 2dly, to compel performance, in covenants real. 3. By nonperformance of promises, or assumpsits. Remedy: by action on the case; for damages.
(10.) Implied contracts are such as arise, 1. From the nature and constitution of government. 2. From reason and the construction of law.
(11.) Breaches of contracts, implied in the nature of government, are by the nonpayment of money which the laws have directed to be paid. Remedy: by action of debt (which, in such cases, is frequently a popular, frequently a qui tam, action); to compel the specific payment;—or, sometimes, by action on the case; for damages.
(12.) Breaches of contracts, implied in reason and construction of law, are by the nonperformance of legal presumptive assumpsits: for which the remedy is in damages; by an action on the case on the implied assumpsits, 1. Of a quantum meruit. 2. Of a quantum valebat. 3. Of money expended for another. 4. Of receiving money to another's use. 5. Of an insimul computassent, on an account stated (the remedy on an account unstated being by action of account). 6. Of performing one's duty, in any employment, with integrity, diligence, and skill. In some of which cases an action of deceit (or on the case, in nature of deceit) will lie.
(1.) INJURIES affecting real property are, 1. Ouster. 2. Trespass. 3. Nuisance. 4. Waste. 5. Subtraction. 6. Disturbance.
(2.) Ouster is the amotion of possession; and is, 1. From freeholds. 2. From chattels real.
(3.) Ouster from freeholds is effected by, 1. Abatement. 2. Intrusion. 3. Disseisin. 4. Discontinuance. 5. Desforement.
(4.) Abatement is the entry of a stranger, after the death of the ancestor, before the heir.
(5.) Intrusion is the entry of a stranger, after a par-
ticular estate of freehold is determined, before him in remainder or reversion.
(6.) Disseisin is a wrongful putting out of him that is seised of the freehold.
(7.) Discontinuance is where tenant in tail, or the husband of tenant in fee, makes a larger estate of the land than the law alloweth.
(8.) Desforement is any other detainer of the freehold from him who hath the property, but who never had the possession.
(9.) The universal remedy for all these is restitution or delivery of possession; and, sometimes, damages for the detention. This is effected, 1. By mere entry. 2. By action possessory. 3. By writ of right.
(10.) Mere entry, on lands, by him who hath the apparent right of possession, will (if peaceable) divest the mere possession of a wrongdoer. But forcible entries are remedied by immediate restitution, to be given by a justice of the peace.
(11.) Where the wrongdoer hath not only mere possession, but also an apparent right of possession, this may be divested by him who hath the actual right of possession, by means of the possessory actions of evict or entry or assise.
(12.) A writ of entry is a real action, which disproves the title of the tenant, by showing the unlawful means under which he gained or continues possession. And it may be brought either against the wrongdoer himself, or in the degrees called the per, the per and cui, and the post.
(13.) An assise is a real action, which proves the title of the defendant, by showing his own or his ancestor's possession. And it may be brought either to remedy abatements; viz. the assise of mort d'ancestor, &c.: Or to remedy recent disseisins; viz. the assise of novel disseisin.
(14.) Where the wrongdoer hath gained the actual right of possession, he who hath the right of property can only be remedied by a writ of right, or some writ of a similar nature. As, 1. Where such right of possession is gained, by the discontinuance of tenant in tail. Remedy, for the right of property: by writ of formedon. 2. Where gained by recovery in a possessory action, had against tenants of particular estates by their own default. Remedy: by writ of quod ei deforecat. 3. Where gained by recovery in a possessory action, had upon the merits. 4. Where gained by the statute of limitations. Remedy, in both cases: by a mere writ of right, the highest writ in the law.
(1.) OUSTER from chattels real is, 1. From estates by statute and elegit. 2. From an estate for years.
(2.) Ouster from estates by statute or elegit, is effected by a kind of disseisin. Remedy: restitution and damages; by assise of novel disseisin.
(3.) Ouster from an estate for years, is effected by a like disseisin, or ejectment. Remedy: restitution, and damages; 1. By writ of ejectioe firma. 2. By writ of quare eicit infra terminum.
(4.) A writ of ejectioe firma, or action of trespass in ejectment, lieth where lands, &c. are let for a term of years, and the lessee is ousted or ejected from his
term; in which case he shall recover possession of his term, and damages.
(5.) This is now the usual method of trying titles to land, instead of an action real: viz. By, 1. The claimant's making an actual (or supposed) lease upon the land to the plaintiff. 2. The plaintiff's actual (or supposed) entry thereupon. 3. His actual (or supposed) ouster and ejectment by the defendant. For which injury this action is brought either against the tenant, or (more usually) against some casual or fictitious ejector; in whose stead the tenant may be admitted defendant, on condition that the lease, entry, and ouster, be confessed, and that nothing else be disputed but the merits of the title claimed by the lessor of the plaintiff.
(6.) A writ of quare eicit infra terminum is an action of a similar nature; only not brought against the wrongdoer or ejector himself, but such as are in possession under his title.
to another, withdraws or neglects to perform them. This may be, 1. Of rents, and other services, due by tenure. 2. Of those due by custom.
(2.) For subtraction of rents and services, due by tenure, the remedy is, 1. By distress; to compel the payment or performance. 2. By action of debt. 3. By assise. 4. By writ de consuetudinibus et servitiis;—to compel the payment. 5. By writ of cessavit;—and, 6. By writ of right sur disclaimant;—to recover the land itself.
(3.) To remedy the oppression of the lord, the law has also given, 1. The writ of Ne injuste vexes; 2. The writ of mesne.
(4.) For subtraction of services, due by custom, the remedy is, 1. By writ of Setta ad molendinum, furnum, torrale, &c. to compel the performance, and recover damages. 2. By action on the case; for damages only.
TRESPASS is an entry upon, and damage done to, another's lands, by one's self, or one's cattle; without any lawful authority, or cause of justification: which is called a breach of his close. Remedy: damages; by action of trespass, quare clausum fregit: besides that of distress, damage feasant. But, unless the title to the land came chiefly in question, or the trespass was wilful or malicious, the plaintiff (if the damages be under forty shillings) shall recover no more costs than damages.
(1.) DISTURBANCE is the hindering, or disquieting, the owners of an incorporeal hereditament, in their regular and lawful enjoyment of it.
(2.) Disturbances are, 1. Of franchises. 2. Of commons. 3. Of ways. 4. Of tenure. 5. Of patronage.
(3.) Disturbance of franchises, is remedied by a special action on the case; for damages.
(4.) Disturbance of commons, is, 1. Intercommoning without right. Remedy: Damages; by an action on the case, or of trespass: besides distress, damage feasant; to compel satisfaction. 2. Surcharging the common. Remedies: distress, damage feasant; to compel satisfaction: Action on the case; for damages: or, Writ of admeasurement of pasture; to apportion the common; and writ de secunda superoneratione; for the supernumerary cattle, and damages. 3. Inclosure, or obstruction. Remedies: Restitution of the common, and damages; by assise of novel disseisin, and by writ of quod permittat: or, Damages only; by action on the case.
(5.) Disturbance of ways, is the obstruction, 1. Of a way in gross, by the owner of the land. 2. Of a way appendant, by a stranger. Remedy, for both: damages; by action on the case.
(6.) Disturbance of tenure, by driving away tenants, is remedied by a special action on the case; for damages.
(7.) Disturbance of patronage, is the hindrance of a patron to present his clerk to a benefice; whereof usurpation, within six months, is now become a species.
(8.) Disturbers may be, 1. The pseudo-patron, by his wrongful presentation. 2. His clerk, by demanding institution. 3. The ordinary, by refusing the clerk of the true patron.
(9.) The remedies are, 1. By assise of darrein presentment; 2. By writ of quare impedit;—to compel institution and recover damages: Consequent to which are the writs of quare incumbravit, and quare non admisit; for subsequent damages. 3. By writ of right of advowson; to compel institution, or establish the permanent right.
(1.) NUISANCE, or annoyance, is any thing that worketh damage or inconvenience: and it is either a public and common nuisance, of which in the next chapter; or, a private nuisance, which is any thing done to the hurt or annoyance of, 1. The corporeal; 2. The incorporeal, hereditaments of another.
(2.) The remedies for a private nuisance (besides that of abatement) are, 1. Damages; by action on the case; (which also lies for special prejudice by a public nuisance). 2. Removal thereof, and damages; by assise of nuisance. 3. Like removal, and damages; by writ of Quod permittat prosterne.
(1.) WASTE is a spoil and destruction in lands and tenements, to the injury of him who hath, 1. An immediate interest (as, by right of common) in the lands. 2. The remainder or reversion of the inheritance.
(2.) The remedies, for a commoner, are restitution, and damages; by assise of common: Or, damages only; by action on the case.
(3.) The remedy, for him in remainder, or reversion, is, 1. Preventive: by writ of estrepement at law, or injunction out of chancery; to stay waste. 2. Corrective: by action of waste; to recover the place wasted, and damages.
(1.) SUBTRACTION is when one, who owes services
(1.) INJURIES to which the crown is a party are, 1. Where the crown is the aggressor. 2. Where the crown is the sufferer.
(2.) The crown is the aggressor, whenever it is in possession of any property to which the subject hath a right.
(3.) This is remedied, 1. By petition of right; where the right is grounded on facts disclosed in the petition itself. 2. By monstrans de droit; where the claim is grounded on facts, already appearing on record. The effect of both which is to remove the hands (or possession) of the king.
(4.) Where the crown is the sufferer, the king's remedies are, 1. By such common-law actions as are consistent with the royal dignity. 2. By inquest of office, to recover possession: which, when found, gives the king his right by solemn matter of record; but may afterwards be traversed by the subject. 3. By writ of seire facias, to repeal the king's patent or grant. 4. By information of intrusion, to give damages for any trespass on the lands of the crown; or of debt, to recover moneys due upon contract, or forfeited by the breach of any penal statute; or sometimes (in the latter case) by information in rem: all filed in the exchequer ex officio by the king's attorney-general. 5. By writ of quo warranto, or information in the nature of such writ; to seize into the king's hands any franchise usurped by the subject, or to oust an usurper from any public office. 6. By writ of mandamus, unless cause; to admit or restore any person intitled to a franchise or office: to which if a false cause be returned, the remedy is by traverse, or by action on the case for damages; and, in consequence, a peremptory mandamus, or writ of restitution.
xxii. SECT. XVIII. Of the pursuit of remedies by action; and, first, of the original writ.
(1.) THE pursuit of the several remedies furnished by the laws of England, is, 1. By action in the courts of common law. 2. By proceedings in the courts of equity.
(2.) OF an action in the court of common pleas (originally the proper court for prosecuting civil suits) the orderly parts are, 1. The original writ. 2. The process. 3. The pleadings. 4. The issue, or demurrer. 5. The trial. 6. The judgment. 7. The proceedings in nature of appeal. 8. The execution.
(3.) The original writ is the beginning or foundation of a suit, and is either optional (called a præcipe), commanding the defendant to do something in certain, or otherwise show cause to the contrary; or peremptory called a si fuerit te securum, commanding, upon security given by the plaintiff, the defendant to appear in court, to show wherefore he hath injured the plaintiff: both issuing out of chancery under the king's great seal, and returnable in bank during term-time.
SECT. XIX. Of process.
xxiii. (1.) PROCESS is the means of compelling the defendant to appear in court.
(2.) This includes, 1. Summons. 2. The writ of attachment, or pone; which is sometimes the first or original process. 3. The writ of distingas, or distress infinite. 4. The writs of capias ad respondendum, and testatum capias; or, instead of these, in the king's bench, the bill of Middlesex, and writ of latitat;—and, in the exchequer, the writ of quo minus. 5. The alias and pluries writs. 6. The exigent, or writ of exigi facias, proclamations, and outlawry. 7. Appearance, and common bail. 8. The arrest. 9. Special bail, first to the sheriff, and then to the action.
SECT. XX. Of pleadings.
PLEADINGS are the mutual altercations of the plaintiff and defendant in writing; under which are comprised, 1. The declaration or count; (wherein, incidentally, of the visne, non-suit, retraxit, and discontinuance). 2. The defence, claim of cognizance, impleadance, view, oyer, aid-prayer, voucher, or age; 3. The plea; which is either a dilatory plea (1st, to the jurisdiction; 2nd, in disability of the plaintiff; 3rd, in abatement), or it is a plea to the action; sometimes confessing the action either in whole or in part; (wherein of a tender, paying money into court, and set off): but usually denying the complaint, by pleading either, 1st, the general issue; or, 2nd, a special bar (wherein of justifications, the statutes of limitation, &c.). 4. Replication, rejoinder, surrejoinder, rebutter, surrebutter, &c. Therein of estoppels, colour, duplicity, departure, new assignment, protestation, averment, and other incidents of pleading.
SECT. XXI. Of issue and demurrer.
(1.) ISSUE is where the parties, in a course of pleading, come to a point affirmed on one side and denied on the other; which, if it be a matter of law, is called a demurrer; if it be a matter of fact, still retains the name of an issue, of fact.
(2.) CONTINUANCE is the detaining of the parties in court from time to time, by giving them a day certain to appear upon. And, if any new matter arises since the last continuance or adjournment, the defendant may take advantage of it, even after demurrer or issue, by alleging it in a plea puis darrein continuance.
(3.) The determination of an issue in law, or demurrer, is by the opinion of the judges of the court; which is afterwards entered on record.
SECT. XXII. Of the several species of trial.
(1.) TRIAL is the examination of the matter of fact put in issue.
(2.) The species of trials are, 1. By the record. 2. By inspection. 3. By certificate. 4. By witnesses. 5. By wager of battle. 6. By wager of law. 7. By jury.
(3.) Trial by the record is had, when the existence of such record is the point in issue.
(4.) Trial by inspection or examination is had by the court, principally when the matter in issue is the evident object of the senses.
(5.) Trial by certificate is had in those cases, where such certificate must have been conclusive to a jury.
(6.)
(6.) Trial by witnesses (the regular method in the civil law) is only used on a writ of dower, when the death of the husband is in issue.
(7.) Trial by wager of battle, in civil cases, is only had on a writ of right; but, in lieu thereof, the tenant may have, at his option, the trial by the grand assize.
(8.) Trial by wager of law is only had, where the matter in issue may be supposed to have been privily transacted between the parties themselves, without the intervention of other witnesses.
(1.) TRIAL by jury is, 1. Extraordinary; as, by the grand assize, in writs of right; and by the grand jury, in writs of attainder. 2. Ordinary.
(2.) The method and process of the ordinary trial by jury is, 1. The writ of venire facias to the sheriff, coroners, or elisors; with the subsequent compulsive process of habeas corpora, or disringas. 2. The carrying down of the record to the court of nisi prius. 3. The sheriff's return; or panel of, 1st, special, 2dly, common jurors. 4. The challenges; 1st, to the array; 2dly, to the polls of the jurors; either, propter honoris respectum, propter defectum, propter affectum (which is sometimes a principal challenge, sometimes to the favour), or propter delitium. 5. The tales de circumstantibus. 6. The oath of the jury. 7. The evidence; which is either by proofs, 1st, written; 2dly, parole:—or, by the private knowledge of the jurors. 6. The verdict; which may be, 1st, privy; 2dly, public; 3dly, special.
(1.) WHATEVER is transacted at the trial, in the court of nisi prius, is added to the record under the name of a postea: consequent upon which is the judgment.
(2.) Judgment may be arrested or stayed for causes, 1. Extrinsic, or dehors the record; as in the case of new trials. 2. Intrinsic, or within it; as where the declaration varies from the writ, or the verdict from the pleadings, and issue; or where the case, laid in the declaration, is not sufficient to support the action in point of law.
(3.) Where the issue is immaterial, or insufficient, the court may award a repleader.
(4.) Judgment is the sentence of the law, pronounced by the court, upon the matter contained in the record.
(5.) Judgments are, 1. Interlocutory; which are incomplete till perfected by a writ of inquiry. 2. Final.
(6.) Costs, or expenses of suit, are now the necessary consequence of obtaining judgment.
(1.) PROCEEDINGS, in the nature of appeals from judgment, are, 1. A writ of attaint; to impeach the verdict of a jury; which of late has been superseded by new trials. 2. A writ of audita querela; to discharge a judgment by matter that has since happened.
3. A writ of error, from one court of record to another; to correct judgments, erroneous in point of law, and not helped by the statutes of amendment and joinders.
(2.) Writs of error lie, 1. To the court of king's bench, from all inferior courts of record; from the court of common-pleas at Westminster; and from the court of king's-bench in Ireland. 2. To the courts of exchequer-chamber, from the law side of the court of exchequer; and from proceedings in the court of king's-bench by bill. 3. To the house of peers, from proceedings in the court of king's-bench by original, and on writs of error; and from the several courts of exchequer-chamber.
EXECUTION is the putting in force of the sentence or judgment of the law. Which is effected, 1. Where possession of any hereditament is recovered; by writ of habere facias seisinam, possessionem, &c. 2. Where any thing is awarded to be done or rendered, by a special writ for that purpose: as, by writ of abatement, in case of nuisance; retorna habendo, and capias in withernam, in replevin; disringas and seire facias, in detinue. 3. Where money only is recovered; by writ of, 1st, capias ad satisfaciendum, against the body of the defendant; or, in default thereof, seire facias against his bail. 2dly, Fieri facias, against his goods and chattels. 3dly, Levari facias, against his goods and the profits of his lands. 4thly, Elegit, against his goods, and the possession of his lands. 5thly, Extendi facias, and other process, on statutes, recognizances, &c. against his body, lands, and goods.
(1.) MATTERS of equity which belong to the peculiar jurisdiction of the court of chancery, are, 1. The guardianship of infants. 2. The custody of idiots and lunatics. 3. The superintendence of charities. 4. Commissions of bankrupt.
(2.) The court of exchequer and the duchy-court of Lancaster, have also some peculiar causes, in which the interest of the king is more immediately concerned.
(3.) Equity is the true sense and sound interpretation of the rules of law; and, as such, is equally attended to by the judges of the courts both of common law and equity.
(4.) The essential differences, whereby the English courts of equity are distinguished from the courts of law, are, 1. The mode of proof, by a discovery on the oath of the party; which gives a jurisdiction in matters of account, and fraud. 2. The mode of trial; by depositions taken in any part of the world. 3. The mode of relief; by giving a more specific and extensive remedy than can be had in the courts of law; as, by carrying agreements into execution, staying waste or other injuries by injunction, directing the sale of incumbered lands, &c. 4. The true construction of securities for money, by considering them merely as a pledge. 5. The execution of trusts, or second uses, in a manner analogous to the law of legal estates.
(5.)
(5.) The proceedings in the court of chancery (to which those in the exchequer, &c. very nearly conform) are, 1. Bill. 2. Writ of subpana; and, perhaps, in-junction. 3. Process of contempt; viz. (ordinarily) attachment, attachment with proclamations, commission of rebellion, sergeant at arms, and sequestrations. 4. Appearance. 5. Demurrer. 6. Plea. 7. Answer. 8. Exceptions; amendments; cross, or supplemental, bills; bills of revivor, interpleader, &c. 9. Replication. 10. Issue. 11. Depositions, taken upon interrogatories; and subsequent publication thereof. 12. Hearing. 13. Interlocutory decree; feigned issue, and trial; reference to the master, and report; &c. 14. Final decree. 15. Rehearing, or bill of review. 16. Appeal to parliament.
(1.) IN treating of public wrongs may be considered, 1. The general nature of crimes and punishments. 2. The persons capable of committing crimes. 3. Their several degrees of guilt. 4. The several species of crimes, and their respective punishments. 5. The means of prevention. 6. The method of punishment.
(2.) A crime, or misdemeanor, is an act committed, or omitted, in violation of a public law either forbidding or commanding it.
(3.) Crimes are distinguished from civil injuries, in that they are a breach and violation of the public rights, due to the whole community, considered as a community.
(4.) Punishments may be considered with regard to, 1. The power; 2. The end; 3. The measure;—of their infliction.
(5.) The power, or right, of inflicting human punishments for natural crimes, or such as are mala in se, was by the law of nature vested in every individual; but, by the fundamental contract of society, is now transferred to the sovereign power; in which also is vested, by the same contract, the right of punishing positive offences, or such as are mala prohibita.
(6.) The end of human punishments is to prevent future offences; 1. By amending the offender himself. 2. By deterring others through his example. 3. By depriving him of the power to do future mischief.
(7.) The measure of human punishments must be determined by the wisdom of the sovereign power, and not by any uniform universal rule: though that wisdom may be regulated, and assisted, by certain general, equitable, principles.
(1.) ALL persons are capable of committing crimes, unless there be in them a defect of will: for, to constitute a legal crime, there must be both a vicious will, and a vicious act.
(2.) The will does not concur with the act, 1. Where
there is a defect of understanding. 2. Where no will is exerted. 3. Where the act is constrained by force and violence.
(3.) A vicious will may therefore be wanting, in the cases of, 1. Infancy. 2. Idiocy, or lunacy. 3. Drunkenness; which doth not, however, excuse. 4. Misfortune. 5. Ignorance, or mistake of fact. 6. Compulsion, or necessity; which is, 1st, that of civil subjection; 2dly, that of duress per minas; 3dly, that of choosing the least pernicious of two evils, where one is unavoidable; 4thly, that of want, or hunger; which is no legitimate excuse.
(4.) The king, from his excellence and dignity, is also incapable of doing wrong.
(1.) THE different degrees of guilt in criminals are, 1. As principals. 2. As accessories.
(2.) A principal in a crime is, 1. He who commits the fact. 2. He who is present at, aiding, and abetting, the commission.
(3.) An accessory is he who doth not commit the fact, nor is present at the commission; but is in some sort concerned therein, either before or after.
(4.) Accessories can only be in petit treason, and felony: in high treason, and misdemeanors, all are principals.
(5.) An accessory, before the fact, is one who, being absent when the crime is committed, hath procured, counselled, or commanded, another to commit it.
(6.) An accessory after the fact, is where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists, the felon. Such accessory is usually intitled to the benefit of clergy; where the principal, and accessory before the fact, are excluded from it.
(1.) CRIMES and misdemeanors cognizable by the laws of England are such as more immediately offend, 1. GOD, and his holy religion. 2. The law of nations. 3. The king, and his government. 4. The public, or commonwealth. 5. Individuals.
(2.) Crimes more immediately offending GOD and religion are, 1. Apollacy. For which the penalty is incapacity, and imprisonment. 2. Herefy. Penalty, for one species thereof: the same. 3. Offences against the established church:—Either, by reviling its ordinances. Penalties: fine; deprivation; imprisonment; forfeiture.—Or, by nonconformity to its worship: 1st, Thro' total irreligion. Penalty: fine. 2dly, Thro' protestant dissenting. Penalty: suspended by the toleration act. 3dly, Through popery, either in professors of the popish religion, popish recusants, convicts, or popish priests. Penalties: incapacity; double taxes; imprisonment; fines; forfeitures; abjuration of the realm; judgment of felony, without clergy; and judgment of high treason. 4. Blasphemy. Penalty: fine, imprisonment, and corporal punishment. 5. Profane swearing and cursing. Penalty: fine, or house of correction. 6. Witchcraft; or, at least, the pretence thereto. Penalty: imprisonment, and pillory. 7. Religious impostures. Penalty: fine, imprisonment, and
corporal punishment. 8. Simony. Penalties: forfeiture of double value; incapacity. 9. Sabbath-breaking. Penalty: fine. 10. Drunkenness. Penalty: fine, or stocks. 11. Lewdness. Penalties: fine; imprisonment; house of correction.
(1.) The law of nations is a system of rules, deducible by natural reason, and established by universal consent, to regulate the intercourse between independent states.
(2.) In England, the law of nations is adopted in its full extent, as part of the law of the land.
(3.) Offences against this law are principally incident to whole states or nations; but, when committed by private subjects, are then the objects of the municipal law.
(4.) Crimes against the law of nations, animadverted on by the laws of England, are, 1. Violation of safeguards. 2. Infringement of the rights of embassadours. Penalty, in both: arbitrary. 3. Piracy. Penalty: judgment of felony, without clergy.
(1.) CRIMES and misdemeanors more peculiarly offending the king and his government are, 1. High treason. 2. Felonies injurious to the prerogative. 3. Premunire. 4. Other misprisions and contempts.
(2.) High treason may, according to the statute of Edward III. be committed, 1. By compassing or imagining the death of the king, or queen-consort, or their eldest son and heir; demonstrated by some overt act. 2. By violating the king's companion, his eldest daughter, or the wife of his eldest son. 3. By some overt act of levying war against the king in his realm. 4. By adherence to the king's enemies. 5. By counterfeiting the king's great or privy seal. 6. By counterfeiting the king's money, or importing counterfeit money. 7. By killing the chancellor, treasurer, or king's justices, in the execution of their offices.
(3.) High treasons, created by subsequent statutes, are such as relate, 1. To popists: as, the repeated defence of the pope's jurisdiction; the coming from beyond sea of a natural-born popish priest; the renouncing of allegiance, and reconciliation to the pope or other foreign power. 2. To the coinage, or other signatures of the king: as, counterfeiting (or, importing and uttering counterfeit) foreign coin, here current; forging the sign manual, privy signet, or privy seal; falsifying, &c. the current coin. 3. To the protestant succession: as, corresponding with, or remitting to, the late Pretender's sons; endeavouring to impede the succession; writing or printing, in defence of any Pretender's title, or in derogation of the act of settlement, or of the power of parliament to limit the descent of the crown.
(4.) The punishment of high treason, in males, is (generally) to be, 1. Drawn. 2. Hanged. 3. Embowelled alive. 4. Beheaded. 5. Quartered. 6. The head and quarters to be at the king's disposal. But, in treasons relating to the coin, only to be drawn, and hanged till dead. Females, in both cases, are to be drawn, and burned alive.
(1.) FELONY is that offence which occasions the total forfeiture of lands or goods at common law; now usually also punishable with death, by hanging; unless through the benefit of clergy.
(2.) Felonies injurious to the king's prerogative (of which some are within, others without, clergy) are, 1. Such as relate to the coin: as, the wilful uttering of counterfeit money, &c.; (to which head some inferior misdemeanors affecting the coinage may be also referred). 2. Conspiring or attempting to kill a privey counsellor. 3. Serving foreign states, or enlisting soldiers for foreign service. 4. Embezzling the king's armour or stores. 5. Desertion from the king's armies, by land or sea.
(1.) PREMUNIRE, in its original sense, is the offence of adhering to the temporal power of the Pope, in derogation of the regal authority. Penalty: outlawry, forfeiture, and imprisonment: which hath since been extended to some offences of a different nature.
(2.) Among these are, 1. Importing Popish trinkets. 2. Contributing to the maintenance of Popish seminaries abroad, or Popish priests in England. 3. Molesetting the possessors of abbey-lands. 4. Acting as broker in an usurious contract, for more than ten per cent. 5. Obtaining any stay of proceedings in suits for monopolies. 6. Obtaining an exclusive patent for gunpowder or arms. 7. Exaction of purveyance or pre-emption. 8. Asserting a legislative authority in both or either house of parliament. 9. Sending any subject a prisoner beyond sea. 10. Refusing the oaths of allegiance and supremacy. 11. Preaching, teaching, or advised speaking, in defence of the right of any pretender to the crown, or in derogation of the power of parliament to limit the succession. 12. Treating of other matters by the assembly of peers of Scotland, convened for electing their representatives in parliament. 13. Unwarrantable undertakings by unlawful subscriptions to public funds.
(1.) MISPRISIONS and contempts are all such high offences as are under the degree of capital.
(2.) These are, 1. Negative, in concealing what ought to be revealed. 2. Positive, in committing what ought not to be done.
(3.) Negative misprisions are, 1. Misprision of treason. Penalty: forfeiture and imprisonment. 2. Misprision of felony. Penalty: fine and imprisonment. 3. Concealment of treasure trove. Penalty: fine and imprisonment.
(4.) Positive misprisions or high misdemeanors and contempts, are, 1. Mal-administration of public trusts, which includes the crime of peculation. Usual penalties: banishment; fines; imprisonment; disability. 2. Contempts against the king's prerogative. Penalty: fine, and imprisonment. 3. Contempt against his
person and government. Penalty: fine, imprisonment, and infamous corporal punishment. 4. Contempts against his title. Penalties: fine, and imprisonment; or fine, and disability. 5. Contempts against his palaces, or courts of justice. Penalties: fine; imprisonment; corporal punishment; loss of right hand; forfeiture.
(1.) CRIMES especially affecting the commonwealth are offences, 1. Against the public justice. 2. Against the public peace. 3. Against the public trade. 4. Against the public health. 5. Against the public police or economy.
(2.) Offences against the public justice, are, 1. Embezzling or vacating records, and perfuncting others in courts of justice. Penalty: judgment of felony, usually without clergy. 2. Compelling prisoners to become approvers. Penalty: judgment of felony. 3. Obstructing the execution of process. 4. Escapes. 5. Breach of prison. 6. Rescue. Which four may (according to the circumstances) be either felonies, or misdemeanors punishable by fine and imprisonment. 7. Returning from transportation. This is felony, without clergy. 8. Taking rewards to help one to his stolen goods. Penalty: the same as for the theft. 9. Receiving stolen goods. Penalties: transportation; fine; and imprisonment. 10. Theftbote. 11. Common barretry and suing in a feigned name. 12. Maintenance. 13. Champerty. Penalty, in these four: fine, and imprisonment. 14. Compounding prosecutions on penal statutes. Penalty: fine, pillory, and disability. 15. Conspiracy; and threats of accusation in order to extort money, &c. Penalties: the villainous judgment; fine; imprisonment; pillory; whipping; transportation. 16. Perjury, and subordination thereof. Penalties: infamy; imprisonment; fine, or pillory; and, sometimes, transportation or house of correction. 17. Bribery. Penalty: fine, and imprisonment. 18. Embraery. Penalty: infamy, fine, and imprisonment. 19. False verdict. Penalty: the judgment in attaint. 20. Negligence of public officers, &c. Penalty: fine, and forfeiture of the office. 21. Oppression by magistrates. 22. Extortion of officers. Penalty, in both: imprisonment, fine, and sometimes forfeiture of the office.
OFFENCES against the public peace are, 1. Riotous assemblies to the number of twelve. 2. Appearing armed, or hunting in disguise. 3. Threatening, or demanding any valuable thing, by letter.—All these are felonies, without clergy. 4. Destroying of turnpikes, &c. Penalties: whipping; imprisonment; judgment of felony, with and without clergy. 5. Affrays. 6. Riots, routs, and unlawful assemblies. 7. Tumultuous petitioning. 8. Forceable entry, and detainer. Penalty, in all four: fine, and imprisonment. 9. Going unusually armed. Penalty: forfeiture of arms, and imprisonment. 10. Spreading false news. Penalty: fine, and imprisonment. 11. Pretended prophecies. Penalties: fine; imprisonment; and forfeiture. 12. Challenging to fight. Penalty: fine, imprisonment, and some-
times forfeiture. 13. Libels. Penalty: fine, imprisonment, and corporal punishment.
OFFENCES against the public trade, are, 1. Owling. Penalties: fines; forfeiture; imprisonment; loss of left hand; transportation; judgment of felony. 2. Smuggling. Penalties: fines; loss of goods; judgment of felony, without clergy. 3. Fraudulent bankruptcy. Penalty: judgment of felony without clergy. 5. Usury. Penalty: fine, and imprisonment. 5. Cheating. Penalties: fine; imprisonment; pillory; tumbrel; whipping, or other corporal punishment, transportation. 6. Forestalling. 7. Regrading. 8. Engrossing. Penalties, for all three: loss of goods; fine; imprisonment; pillory. 9. Monopolies, and combinations to raise the price of commodities. Penalties: fines; imprisonment; pillory; loss of ear; infamy; and, sometimes, the pains of premunire. 10. Exercising a trade, not having served as an apprentice. Penalty: fine. 11. Transporting, or residing abroad, of artificers. Penalties: fine; imprisonment; forfeiture; incapacity; becoming aliens.
(1.) OFFENCES against the public health are, 1. Irregularity, in the time of the plague, or of quarantine. Penalties: whipping; judgment of felony, with and without clergy. 2. Selling unwholesome provisions. Penalties: amercement; pillory; fine; imprisonment; abjuration of the town.
(2.) Offences against the public police and economy or domestic order of the kingdom, are, 1. Those relating to clandestine and irregular marriages. Penalties: judgment of felony, with and without clergy. 2. Bigamy, or (more properly) polygamy. Penalty: judgment of felony. 3. Wandering, by soldiers or mariners. 4. Remaining in England, by Egyptians; or being in their fellowship one month. Both these are felonies, without clergy. 5. Common nuisances, 1st, by annoyances or purpretures in highways, bridges, and rivers; 2dly, by offensive trades and manufactures; 3dly, by disorderly houses; 4thly, by lotteries; 5thly, by cottages; 6thly, by fireworks; 7thly, by evesdropping. Penalty, in all; fine.—8thly, by common scolding. Penalty: the cucking stool. 6. Idleness, disorder, vagrancy, and incorrigible rogery. Penalties: imprisonment; whipping; judgment of felony. 7. Luxury, in diet. Penalty, discretionary. 8. Gaming. Penalties: to gentlemen, fines; to others, fine and imprisonment; to cheating gamblers, fine, infamy, and the corporal pains of perjury. 9. Destroying the game. Penalties: fines, and corporal punishment.
(1.) CRIMES especially affecting individuals are, 1. Against their persons. 2. Against their habitations. 3. Against their property. (2.) Crimes against the persons of individuals, are, 1. By homicide, or destroying life. 2. By other corporal injuries.
(3.) Homicide is, 1. Justifiable. 2. Excusable. 3. Felonious.
(4.) Homicide is justifiable, 1. By necessity, and command of law. 2. By permission of law; 1st, for the furtherance of public justice; 2dly, for prevention of some forcible felony.
(5.) Homicide is excusable, 1. Per infortunium, or by mis-adventure. 3. Se defendendo, or in self-defence, by chance-medley. Penalty, in both: forfeiture of goods; which however is pardoned of course.
(6.) Felonious homicide is the killing of a human creature without justification or excuse. This is, 1. Killing one's self. 2. Killing another.
(7.) Killing one's self, or self-murder, is where one deliberately, or by any unlawful malicious act, puts an end to his own life. This is felony; punished by ignominious burial, and forfeiture of goods and chattels.
(8.) Killing another is, 1. Manslaughter. 2. Murder.
(9.) Manslaughter is the unlawful killing of another, without malice, express or implied. This is either, 1. Voluntary, upon a sudden heat. 2. Involuntary, in the commission of some unlawful act. Both are felony, but within clergy; except in the case of stabbing.
(10.) Murder is when a person, of sound memory and discretion, unlawfully killeth any reasonable creature, in being, and under the king's peace; with malice aforethought, either express or implied. This is felony, without clergy; punished with speedy death, and hanging in chains, or dissection.
(11.) Petit treason (being an aggravated degree of murder) is where the servant kills his master, the wife her husband, or the ecclesiastical his superior. Penalty: in men, to be drawn and hanged; in women, to be drawn and burned.
CRIMES affecting the persons of individuals, by other corporal injuries not amounting to homicide, are, 1. Mayhem; and also shooting at another. Penalties: fine; imprisonment; judgment of felony, without clergy. 2. Forcible abduction, and marriage or defilement, of an heiress; which is felony: also, stealing, and deflowering or marrying any woman-child under the age of sixteen years; for which the penalty is imprisonment, fine, and temporary forfeiture of her lands. 3. Rape, and also carnal knowledge, of a woman-child under the age of ten years. 4. Burglary, with man or beast. Both these are felonies, without clergy. 5. Assault. 6. Battery; especially of clergymen. 7. Wounding. Penalties, in all three: fine; imprisonment; and other corporal punishment. 8. False imprisonment. Penalties: fine; imprisonment; and (in some atrocious cases) the pains of premunire, and incapacity of office or pardon. 9. Kidnapping, or forcibly stealing away the king's subjects. Penalty: fine; imprisonment; and pillory.
(1.) CRIMES, affecting the habitations of individuals are, 1. Arson. 2. Burglary.
(2.) Arson is the malicious and wilful burning of the house, or out-house, of another man. This is felony; in some cases within, in others without, clergy.
(3.) Burglary is the breaking and entering, by night, into a mansion-house; with intent to commit a felony. This is felony, without clergy.
(1.) CRIMES affecting the private property of individuals are, 1. Larceny. 2. Malicious mischief. 3. Forgery.
(2.) Larceny is, 1. Simple. 2. Mixed, or compound.
(3.) Simple larceny is the felonious taking, and carrying away, of the personal goods of another. And it is, 1. Grand larceny; being above the value of twelve pence. Which is felony; in some cases within, in others without, clergy. 2. Petit larceny; to the value of twelve pence or under. Which is also felony, but not capital; being punished with whipping, or transportation.
(4.) Mixed, or compound, larceny is that wherein the taking is accompanied with the aggravation of being, 1. From the house. 2. From the person.
(5.) Larcinies from the house, by day or night, are felonies without clergy, when they are, 1. Larcinies, above twelve pence, from a church; or by breaking a tent or booth in a market or fair, by day or night, the owner or his family being therein;—or by breaking a dwelling-house by day, any person being therein;—or from a dwelling-house by night, without breaking, any person therein being put in fear;—or from a dwelling-house by night, without breaking, the owner, or his family being therein and put in fear. 2. Larcinies, of five shillings, by breaking the dwelling-house, shop, or warehouse by day, though no person be therein;—or, by privately stealing in any shop, warehouse, coach-house, or stable, by day or night, without breaking, and though no person be therein. 3. Larcinies, of forty shillings, from a dwelling-house or its out-houses, without breaking, and though no person be therein.
(6.) Larceny from the person is, 1. By privately stealing, from the person of another, above the value of twelve pence. 2. By robbery; or the felonious and forcible taking, from the person of another, in or near the highway, goods or money of any value, by putting him in fear. These are both felonies without clergy. An attempt to rob is also felony.
(7.) Malicious mischief, by destroying dikes, goods, cattle, ships, garments, fish-ponds, trees, woods, churches, chapels, meeting-houses, houses, out-houses, corn, hay, straw, sea or river banks, hop-binds, coal-mines (or engines thereunto belonging), or any fences for inclosures by act of parliament, is felony; and, in most cases, without benefit of clergy.
(8.) Forgery is the fraudulent making or alteration of a writing, in prejudice of another's right. Penalties: fine; imprisonment; pillory; loss of nose and ears; forfeiture; judgment of felony, without clergy.
mon law, are, 1. Arrest. 2. Commitment and bail. 3. Prosecution. 4. Procest. 5. Arraignment, and its incidents. 6. Plea and issue. 7. Trial and conviction. 8. Clergy. 9. Judgment, and its consequences. 10. Reversal of judgment. 11. Reprieve or pardon. 12. Execution.
(2.) An arrest is the apprehending, or restraining, of one's person; in order to be forthcoming to answer a crime whereof one is accused or suspected.
(3.) This may be done, 1. By warrant. 2. By an officer, without warrant. 3. By a private person, without warrant. 4. By hue and cry.
(1.) COMMITMENT is the confinement of one's person in prison, for safe custody, by warrant from proper authority; unless, in bailable offences, he puts in sufficient bail, or security for his future appearance.
(2.) The magistrate is bound to take reasonable bail, if offered; unless the offender be not bailable.
(3.) Such are, 1. Persons accused of treason; or, 2. Of murder; or, 3. Of manslaughter, by indictment; or if the prisoner was clearly the slayer. 4. Prison-breakers, when committed for felony. 5. Outlaws. 6. Those who have abjured the realm. 7. Approvers, and appellees. 8. Persons taken with the mainour. 9. Persons accused of arson. 10. Excommunicated persons.
(4.) The magistrate may, at his discretion, admit to bail, or otherwise, persons not of good fame, charged with other felonies, whether as principals or as accessories.
(5.) If they be of good fame, he is bound to admit them to bail.
(6.) The court of king's bench, or its judges in time of vacation, may bail in any case whatsoever.
(1.) PROSECUTION, or the manner of accusing offenders, is either by a previous finding of a grand jury; as, 1. By presentment. 2. By indictment. Or, without such finding. 3. By information. 4. By appeal.
2. A presentment is the notice taken by a grand jury of any offence, from their own knowledge or observation.
(3.) An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented on oath by, a grand jury; expressing, with sufficient certainty, the person, time, place, and offence.
(4.) An information is, 1. At the suit of the king and a subject, upon penal statutes. 4. At the suit of the king only. Either, 1. Filed by the attorney-general ex officio, for such misdemeanors as affect the king's person or government; or, 2. Filed by the master of the crown-office (with leave of the court of king's bench) at the relation of some private subject, for other gross and notorious misdemeanors. All differ-
(1.) CRIMES and misdemeanors may be prevented, by compelling suspected persons to give security: which is effected by binding them in a conditional recognizance to the king, taken in court, or by a magistrate.
(2.) These recognizances may be conditioned, 1. To keep the peace. 2. To be of good behaviour.
(3.) They may be taken by any justice or conservator of the peace, at his own discretion; or, at the request of such as are intitled to demand the same.
(4.) All persons, who have given sufficient cause to apprehend an intended breach of the peace, may be bound over to keep the peace; and all those, that be not of good fame, may be bound to the good behaviour; and may, upon refusal in either case, be committed to gaol.
(1.) IN the method of punishment may be considered, 1. The several courts of criminal jurisdiction. 2. The several proceedings therein.
(2.) The criminal courts are, 1. Those of a public and general jurisdiction throughout the realm. 2. Those of a private and special jurisdiction.
(3.) Public criminal courts are, 1. The high court of parliament; which proceeds by impeachment. 2. The court of the lord high steward; and the court of the king in full parliament: for the trial of capitally indicted peers. 3. The court of king's bench. 4. The court of chivalry. 5. The court of admiralty, under the king's commission. 6. The courts of oyer and terminer, and general gaol-delivery. 7. The court of quarter sessions of the peace. 8. The sheriff's tourn. 9. The court leet. 10. The court of the coroner. 11. The court of the clerk of the market.
(4.) Private criminal courts are, 1. The court of the lord steward, &c. by statute of Henry VII. 2. The court of the lord steward, &c. by statute of Henry VIII. 3. The university courts.
(1.) PROCEEDINGS in criminal courts are, 1. Summary. 2. Regular.
(2.) Summary proceedings are such, whereby a man may be convicted of divers offences, without any formal procest or jury, at the discretion of the judge or judges appointed by act of parliament, or common law.
(3.) Such are, 1. Trials of offences and frauds against the laws of excise and other branches of the king's revenue. 2. Convictions before justices of the peace upon a variety of minute offences, chiefly against the public police. 3. Attachments for contempts to the superior courts of justice.
(1.) REGULAR proceedings in the courts of com-
ferring from indictments in this; that they are exhibited by the informer, or the king's officer; and not on the oath of a grand jury.
(5.) An appeal is an accusation or suit, brought by one private subject against another, for larceny, rape, mayhem, arson, or homicide; which the king cannot discharge or pardon, but the party alone can release.
(1.) PROCESS to bring in an offender, when indicted in his absence, is, in misdemeanors, by venire facias, distress infinite, and capias: in capital crimes, by capias only: and, in both, by outlawry.
(2.) During this stage of proceedings, the indictment may be removed into the court of king's bench from any inferior jurisdiction, by writ of certiorari facias: and cognizance must be claimed in places of exclusive jurisdiction.
(1.) ARRAIGNMENT is the calling of the prisoner to the bar of the court, to answer the matter of the indictment.
(2.) Incident hereunto are, 1. The standing mute of the prisoner; for which, in petit treason, and felonies of death, he shall undergo the peine fort & dure. 2. His confession; which is either simple, or by way of approvement.
(1.) THE plea, or defensive matter alleged by the prisoner, may be, 1. A plea to the jurisdiction. 2. A demurrer in point of law. 3. A plea in abatement. 4. A special plea in bar; which is, 1st, Auterfois acquit; 2dly, Auterfois convict; 3dly, Auterfois attainit; 4thly, A pardon. 5. The general issue, not guilty.
(2.) Hereupon issue is joined by the clerk of the arraigner, on behalf of the king.
(1.) TRIALS of offences, by the laws of England, were and are, 1. By ordeal, of either fire or water. 2. By the corfied. Both these have been long abolished. 3. By battel, in appeals and improvements. 4. By the peers of Great Britain. 5. By jury.
(2.) The method and process of trial by jury is, 1. The impanelling of the jury. 2. Challenges; 1st, for cause; 2dly, peremptory. 3. Tales de circumstantibus. 4. The oath of the jury. 5. The evidence. 6. The verdict, either general or special.
(3.) Conviction is when the prisoner pleads, or is found guilty: whereupon, in felonies, the prosecutor is intitled to, 1. His expences. 2. Restitution of his goods.
(1.) CLERGY, or the benefit thereof, was originally derived from the usurped jurisdiction of the Popish
ecclesiastics; but hath since been new-modelled by several statutes.
(2.) It is an exemption of the clergy from any other secular punishment for felony, than imprisonment for a year, at the court's discretion; and it is extended likewise, absolutely, to lay peers, for the first offence; and to all lay-commoners, for the first offence also, upon condition of branding, imprisonment, or transportation.
(3.) All felonies are intitled to the benefit of clergy, except such as are now ousted by particular statutes.
(4.) Felons, on receiving the benefit of clergy, (though they forfeit their goods to the crown), are discharged of all clergyable felonies before committed, and restored in all capacities and credits.
(1.) JUDGMENT (unless any matter be offered in arrest thereof) follows upon conviction; being the pronouncing of that punishment which is expressly ordained by law.
(2.) Attainder of a criminal is the immediate consequence, 1. Of having judgment of death pronounced upon him. 2. Of outlawry for a capital offence.
(3.) The consequences of attainder are, 1. Forfeiture to the king. 2. Corruption of blood.
(4.) Forfeiture to the king, is, 1. Of real estates, upon attainder;—in high treason, absolutely, till the death of the late Pretender's sons;—in felonies, for the king's year, day, and waste;—in misprision of treason, assaults on a judge, or battery fitting the courts; during the life of the offender. 2. Of personal estates, upon conviction; in all treason, misprision of treason, felony, excusable homicide, petit larceny, standing mute upon arraignment, the above-named contempts of the king's courts, and flight.
(5.) Corruption of blood is an utter extinction of all inheritable quality therein: so that, after the king's forfeiture is first satisfied, the criminal's lands escheat to the lord of the fee; and he can never afterwards inherit, be inherited, or have any inheritance derived through him.
(1.) JUDGMENTS, and their consequences, may be avoided, 1. By falsifying, or reversing, the attainder. 2. By reprieve, or pardon.
(2.) Attainders may be falsified, or reversed. 1. Without a writ of error; for matter debors the record. 2. By writ of error; for mistakes in the judgment, or record. 3. By act of parliament; for favour.
(3.) When an outlawry is reversed, the party is restored to the same plight as if he had appeared upon the capias. When a judgment, on conviction, is reversed, the party stands as if never accused.
(1.) A REPIEVE is a temporary suspension of the judgment, 1. Ex arbitrio judicis. 2. Ex necessitate legis; for pregnancy, infancy, or the trial of identity of person, which must always be tried inlander.
(2.)
(2.) A pardon is a permanent avoide of the judgment by the king's majesty, in offences against his crown and dignity; drawn in due form of law, allowed in open court, and thereby making the offender a new man.
(3.) The king cannot pardon, 1. Imprisonment of the subject beyond the seas. 2. Offences prosecuted by appeal. 3. Common nuisances. 4. Offences against popular or penal statutes, after information brought by a subject. Nor is his pardon pleadable to an impeachment by the commons in parliament.
(1.) EXECUTION is the completion of human punishment, and must be strictly performed in the manner which the law directs.
(2.) The warrant for execution is sometimes under the hand and seal of the judge; sometimes by writ from the king; sometimes by rule of court; but commonly by the judge's signing the calendar of prisoners, with their separate judgments in the margin.
1. THE municipal law of Scotland, as of most other countries, consists partly of statutory or written law, which has the express authority of the legislative power; partly of customary or unwritten law, which derives force from its presumed or tacit consent.
2. Under our statutory or written law is comprehended, (1.) Our acts of parliament: not only those which were made in the reign of James I. of Scotland, and from thence down to our union with England in 1707, but such of the British statutes enacted since the union as concerned this part of the united kingdom.
3. The remains of our ancient written law were published by Sir John Skene clerk register, in the beginning of the last century, by licence of parliament. The books of Regiam Majestatem, to which the whole collection owes its title, seem to be a system of Scots law, written by a private lawyer at the command of David I.; and though no express confirmation of that treatise by the legislature appears, yet it is admitted to have been the ancient law of our kingdom by express statutes. The borough-laws, which were also enacted by the same King David, and the statutes of William, Alexander II. David II. and the three Roberts, are universally allowed to be genuine. Our parliaments have once and again appointed commissions to revise and amend the Regiam Majestatem, and the other ancient books of our law, and to make their report: but, as no report appears to have been made, nor consequently any ratification by parliament, none of these remains are received, as of proper authority, in our courts; yet they are of excellent use in proving and illustrating our most ancient customs.
4. Our written law comprehends, (2.) The acts of federant, which are ordinances for regulating the forms of proceeding before the court of session in the administration of justice, made by the judges, who have a delegated power from the legislature for that purpose. Some of these acts dip upon matter of right, which declare what the judges apprehend to be the law of Scotland, and what they are to observe afterwards as a rule of judgment.
5. The civil, or Roman and canon laws, though they are not perhaps to be deemed proper parts of our written law, have undoubtedly had the greatest influence in Scotland. The powers exercised by our sovereigns and judges have been justified upon no other ground, than that they were conformable to the civil
or canon laws; and a special statute was judged necessary, upon the reformation, to rescind such of their constitutions as were repugnant to the Protestant doctrine. From that period, the canon law has been little respected, except in questions of tithes, patronages, and some few more articles of ecclesiastical right: but the Roman continues to have great authority in all cases where it is not derogated from by statute or custom, and where the genius of our law suffers us to apply it.
6. Our unwritten or customary law, is that which, without being expressly enacted by statute, derives its force from the tacit consent of king and people; which consent is presumed from the ancient custom of the community. Custom, as it is equally founded in the will of the lawgiver with written law, has therefore the same effects: hence, as one statute may be explained or repealed by another, so a statute may be explained by the uniform practice of the community, and even go into disuse by a posterior contrary custom. But this power of custom to derogate from prior statutes is generally confined by lawyers to statutes concerning private right, and does not extend to those which regard public policy.
7. An uniform tract of the judgments or decisions of the court of session is commonly considered as part of our customary law; and without doubt, where a particular custom is thereby fixed or proved, such custom of itself constitutes law: but decisions, though they bind the parties litigating, have not, in their own nature, the authority of law in similar cases; yet, where they continue uniform, great weight is justly laid on them. Neither can the judgments of the house of peers of Great Britain reach farther than to the parties in the appeal, since in these the peers act as judges, not as lawgivers.
8. Though the laws of nature are sufficiently published by the internal suggestion of natural light, civil laws cannot be considered as a rule for the conduct of life, till they are notified to those whose conduct they are to regulate. The Scots acts of parliament were, by our most ancient custom, proclaimed in all the different shires, boroughs, and baron-courts, of the kingdom. But after our statutes came to be printed, that custom was gradually neglected; and at last, the publication of our laws, at the market-cross of Edinburgh, was declared sufficient; and they became obligatory 40 days thereafter. British statutes are deemed sufficiently notified, without formal promulgation; either because the printing is truly a publication; or because every.
every subject is, by a maxim of the English law, party to them, as being present in parliament, either by himself or his representative. After a law is published, no pretence of ignorance can excuse the breach of it.
9. As laws are given for the rule of our conduct, they can regulate future cases only; for past actions, being out of our power, can admit of no rule. Declaratory laws form no exception to this; for a statute, where it is declaratory of a former law, does no more than interpret its meaning; and it is included in the notion of interpretation, that it must draw back to the date of the law interpreted.
10. By the rules of interpreting statute-law received in Scotland, an argument may be used from the title to the act itself, a rubro ad nigrum; at least, where the rubric has been either originally framed, or afterwards adopted by the legislature. The preamble or narrative, which recites the inconveniences that had arisen from the former law; and the causes inducing the enactment, may also lead a judge to the general meaning of the statute. But the chief weight is to be laid on the statutory words.
11. Laws, being directed to the unlearned as well as the learned, ought to be construed in their most obvious meaning, and not explained away by subtle distinctions; and no law is to suffer a figurative interpretation, where the proper sense of the words is as commodious, and equally fitted to the subject of the statute. Laws ought to be explained so as to exclude absurdities, and in the sense which appears most agreeable to former laws, to the intention of the lawgiver, and to the general frame and structure of the constitution. In prohibitory laws, where the right of acting is taken from a person, solely for the private advantage of another, the consent of him, in whose behalf the law was made, shall support the act done in breach of it; but the consent of parties immediately interested has no effect in matters which regard the public utility of a state. Where the words of a statute are capable but of one meaning, the statute must be observed, however hard it may bear on particular persons. Nevertheless, as no human system of laws can comprehend all possible cases, more may sometimes be meant by the lawgiver than is expressed; and hence certain statutes, where extension is not plainly excluded, may be extended beyond the letter, to similar and omitted cases: others are to be confined to the statutory words.
12. A strict interpretation is to be applied, (1.) To corrective statutes, which repeal or restrict former laws; and to statutes which enact heavy penalties, or restrain the natural liberties of mankind. (2.) Laws, made on occasion of present exigencies in a state, ought not to be drawn to similar cases, after the pressure is over. (3.) Where statutes establish certain solemnities as requisite to deeds, such solemnities are not suppliable by equivalents; for solemnities lose their nature, when they are not performed specifically. (4.) A statute, which enumerates special cases, is, with difficulty, to be extended to cases not expressed; but, where a law does not descend to particulars, there is greater reason to extend it to similar cases. (5.) Statutes, which carry a dispensation or privilege to particular persons or societies, suffer a strict interpretation; because they derogate from the general law, and imply a burden upon the rest of the community. But at no rate can a pri-
vilege be explained to the prejudice of those in whose behalf it was granted. As the only foundation of customary law is usage, which consists in fact, such law can go no farther than the particular usage has gone.
13. All statutes, concerning matters specially favoured by law, receive an ample interpretation; as laws for the encouragement of commerce, or of any useful public undertaking, for making effectual the wills of dying persons, for restraining fraud, for the security of creditors, &c. A statute, though its subject-matter should not be a favourite of the law, may be extended to similar cases, which did not exist when the statute was made; and for which, therefore, it was not in the lawgiver's power to provide.
14. Every statute, however unfavourable, must receive the interpretation necessary to give it effect: and, on the other hand, in the extension of favourable laws, scope must not be given to the imagination, in discovering remote resemblances; the extension must be limited to the cases immediately similar. Where there is ground to conclude that the legislature has omitted a case out of the statute purposely, the statute cannot be extended to that case, let it be ever so similar to the cases expressed.
15. The objects of the laws of Scotland, according to Mr Erskine, one of the latest writers on the subject, are, Persons, Things, and Actions.
A MONG persons, judges, who are invested with jurisdiction, deserve the first consideration.
JURISDICTION is a power conferred upon a judge or magistrate, to take cognisance of and decide causes according to law, and to carry his sentences into execution. That tract of ground, or district, within which a judge has the right of jurisdiction, is called his territory; and every act of jurisdiction exercised by a judge without his territory, either by pronouncing sentence, or carrying it into execution, is null.
2. The supreme power, which has the right of enacting laws, falls naturally to have the right of erecting courts, and appointing judges, who may apply these laws to particular cases: but, in Scotland, this right has been always intrusted with the crown, as having the executive power of the state.
3. Jurisdiction is either supreme, inferior, or mixed. That jurisdiction is supreme, from which there lies no appeal to a higher court. Inferior courts are those whose sentences are subject to the review of the supreme courts, and whose jurisdiction is confined to a particular territory. Mixed jurisdiction participates of the nature both of the supreme and inferior: thus the judge of the high court of admiralty, and the commissaries of Edinburgh, have an universal jurisdiction over Scotland, and they can review the decrees of inferior admirals and commissaries; but since their own decrees are subject to the review of the courts of session or judiciary, they are, in that respect, inferior courts.
4. Jurisdiction is either civil or criminal: by the first, questions of private right are decided; by the other, crimes are punished. But, in all jurisdiction, though merely
merely civil, there is a power inherent in the judge to punish either corporally, or by a pecuniary fine, those who offend during the proceedings of the court, or who shall afterwards obstruct the execution of the sentence.
5. Jurisdiction is either privative or cumulative. Privative jurisdiction, is that which belongs only to one court, to the exclusion of all others. Cumulative, otherwise called concurrent, is that which may be exercised by any one of two or more courts, in the same cause. In civil cumulative jurisdiction, the private pursuer has the right of election before which of the courts he shall sue; but as, in criminal questions which are prosecuted by a public officer of court, a collision of jurisdiction might happen, through each of the judges claiming the exercise of their right, that judge, by whose warrant the delinquent is first cited or apprehended (which is the first step of jurisdiction), acquires thereby (jure preventionis) the exclusive right of judging in the cause.
6. All rights of jurisdiction, being originally granted in consideration of the fitness of the grantee, were therefore personal, and died with himself. But, upon the introduction of the feudal system, certain jurisdictions were annexed to lands, and descended to heirs, as well as the lands to which they were annexed; but now all heritable jurisdictions, except those of admiralty and a small pittance reserved to barons, are either abolished, or resumed and annexed to the crown.
7. Jurisdiction is either proper or delegated. Proper jurisdiction, is that which belongs to a judge or magistrate himself, in virtue of his office. Delegated, is that which is communicated by the judge to another who acts in his name, called a depute or deputy. Where a deputy appoints one under him, he is called a substitute. No grant of jurisdiction, which is an office requiring personal qualifications, can be delegated by the grantee to another, without an express power in the grant.
8. Civil jurisdiction is founded, 1. Ratione domicilii, if the defender has his domicile within the judge's territory. A domicile is the dwelling place where a person lives with an intention to remain; and custom has fixed it as a rule, that residence for 40 days founds jurisdiction. If one has no fixed dwelling-place, e. g. a soldier, or a travelling merchant, a personal citation against him within the territory is sufficient to found the judge's jurisdiction over him, even in civil questions. As the defender is not obliged to appear before a court to which he is not subject, the pursuer must follow the defender's domicile.
9. It is founded, 2. Ratione rei sitae, if the subject in question lie within the territory. If that subject be immovable, the judge, whose jurisdiction is founded in this way, is the sole judge competent, excluding the judge of the domicile.
10. Where one, who has not his domicile within the territory, is to be sued before an inferior court ratione rei sitae, the court of session must be applied to, whose jurisdiction is universal, and who, of course, grants letters of supplement to cite the defender to appear before the inferior judge. Where the party to be sued resides in another kingdom, and has an estate in this, the court of session is the only proper court, as the commune forum to all persons residing abroad; and the
defender, if his estate be heritable, is considered as lawfully summoned to that court, by a citation at the market-cross of Edinburgh, and pier and shore of Leith: but where a stranger, not a native of Scotland, has only a moveable estate in this kingdom, he is deemed to be so little subject to the jurisdiction of our courts, that action cannot be brought against him till his effects be first attached by an arrestment jurisdictionis fundanda causa; which is laid on by a warrant issuing from the supreme courts of session, or admiralty, or from that within whose territory the subject is situated, at the suit of the creditor.
11. A judge may, in special cases, arrest or secure the persons of such as have neither domicile nor estate within his territory, even for civil debts. Thus, on the border between Scotland and England, warrants are granted of course by the judge ordinary of either side, against those who have their domicile upon the opposite side, for arresting their persons, till they give caution judicio filii: and even the persons of citizens or natives may be so secured, where there is just reason to suspect that they are in meditatione fugae, i. e. that they intend suddenly to withdraw from the kingdom; upon which suspicion, the creditor who applies for the warrant must make oath. An inhabitant of a borough-royal, who has furnished one who lives without the borough in meat, clothes, or other merchandize, and who has no security for it but his own account-book, may arrest his debtor, till he give security judicio filii.
12. A judge may be declined, i. e. his jurisdiction disowned judicially, 1. Ratione causa, from his incompetency to the special cause brought before him. 2. Ratione suspecti judicis; where either the judge himself, or his near kinsman, has an interest in the suit. No judge can vote in the cause of his father, brother, or son, either by consanguinity or affinity; nor in the cause of his uncle or nephew by consanguinity. 3. Ratione privilegii; where the party is by privilege exempted from their jurisdiction.
13. Prorogated jurisdiction (jurisdictione in consentione) is that which is, by the consent of parties, conferred upon a judge, who, without such consent, would be incompetent. Where a judge is incompetent, every step he takes must be null, till his jurisdiction be made competent by the party's actual submission to it. It is otherwise where the judge is competent, but may be declined by the party upon privilege.
14. In order to prorogation, the judge must have jurisdiction, such as may be prorogated. Hence, prorogation cannot be admitted where the judge's jurisdiction is excluded by statute. Yet where the cause is of the same nature with those to which the judge is competent, though law may have confined his jurisdiction within a certain sum, parties may prorogate it above that sum unless where prorogation is prohibited. Prorogation is not admitted in the king's causes; for the interest of the crown cannot be hurt by the negligence of its officers.
15. All judges must at their admission swear, 1. The oath of allegiance, and subscribe the assurance; 2. The oath of abjuration; 3. The oath of supremacy; lastly, The oath de fideli administratione.
16. A party who has either properly declined the jurisdiction of the judge before whom he had been cited, or who thinks himself aggrieved by any proceedings,
ings in the cause, may, before decree, apply to the court of session to issue letters of advocacion for calling the action from before the inferior court to themselves. The grounds, therefore, upon which a party may pray for letters of advocacion, are incompetency and iniquity. Under incompetency, is comprehended not only defect of jurisdiction, but all the grounds of declining a jurisdiction, in itself competent, arising either from suspicion of the judge, or privilege in the parties. A judge is said to commit iniquity, when he either delays justice, or pronounces sentence, in the exercise of his jurisdiction, contrary to law.
17. That the court of session may not waste their time in trifles, no cause for a sum below twelve pounds Sterling can be advocated to the court of session from the inferior judge competent: but if an inferior judge shall proceed upon a cause to which he is incompetent, the cause may be carried from him by advocacion, let the subject be ever so inconsiderable.
1. THE king, who is the fountain of jurisdiction, might by our constitution have judged in all causes, either in his own person, or by those whom he was pleased to vest with jurisdiction.
2. The parliament of Scotland, as our court of the last resort, had the right of reviewing the sentences of all our supreme courts.
3. By the treaty of union, 1707, the parliaments of Scotland and England are united into one parliament of Great Britain. From this period, the British house of peers, as coming in place of the Scots parliament, is become our court of the last resort, to which appeals lie from all the supreme courts of Scotland: but that court has no original jurisdiction in civil matters, in which they judge only upon appeal. By art. 22. of that treaty, the Scots share of the representation in the house of peers is fixed to 16 Scots peers elective; and in the house of commons, to 45 commoners, of which 30 are elected by the freeholders of counties, and 15 by the royal boroughs. The Scots privy council was also thereupon abolished, and sunk into that of Great Britain, which for the future is declared to have no other powers than the English privy council had at the time of the union.
4. A court was erected in 1425, consisting of certain persons to be named by the king, out of the three estates of parliament, which was vested with the jurisdiction formerly lodged in the council, and got the name of the session, because it was ordained to hold annually a certain number of sessions at the places to be specially appointed by the king. This court had a jurisdiction, cumulative with the judge ordinary, in spuzilies, and other possessory actions, and in debts; but they had no cognisance in questions of property of heritable subjects. No appeal lay from its judgments to the parliament. The judges of this court served by rotation, and were changed from time to time, after having sat 40 days; and became so negligent in the administration of justice, that it was at last thought necessary to transfer the jurisdiction of this court to a council to be named by the king, called the daily council.
5. The present model of the court of session, or college of justice, was formed in the reign of James V. The judges thereof, who were vested with an universal civil jurisdiction, consisted originally of seven churchmen, seven laymen, and a president, whom it behoved to be a prelate; but spiritual judges were in 1584 partly, and in 1640 totally, prohibited. The judges of session have been always received by warrants from the crown. Anciently his majesty seems to have transferred to the court itself the right of choosing their own president; and in a sederunt recorded June 26. 1593. the king condescended to present to the lords, upon every vacancy in the bench, a list of three persons, out of which they were to choose one. But his majesty soon resumed the exercise of both rights, which continued with the crown till the usurpation; when it was ordained, that the king should name the judges of the session, by the advice of parliament. After the restoration, the nomination was again declared to be solely in the sovereign.
6. Though judges may, in the general case, be named at the age of 21 years, the lords of session must be at least 25. No person can be named lord of session, who has not served as an advocate or principal clerk of session for five years, or as a writer to the signet for ten: and in the case of a writer to the signet, he must undergo the ordinary trials upon the Roman law, and be found qualified two years before he can be named. Upon a vacancy in the bench, the king presents the successor by a letter addressed to the lords, wherein he requires them to try and admit the person presented. The powers given to them to reject the presented upon trial are taken away, and a bare liberty to remonstrate substituted in its place.
7. Besides the 15 ordinary judges, the king was allowed to name three or four lords of his great council, who might sit and vote with them. These extraordinary lords were suppressed in the reign of Geo. I.
8. The appellation of the college of justice is not confined to the judges, who are distinguished by the name of senators; but comprehends advocates, clerks of session, writers to the signet, and others, as described, Act S. 23d Feb. 1687. Where, therefore, the college of justice is intitled to any privilege, it extends to all the members of the college. They are exempted from watching, wading, and other services within borough; and from the payment of ministers stipends, and of all customs, &c. imposed upon goods carried to or from the city of Edinburgh. Part of these privileges and immunities were lately called in question by the city of Edinburgh; but they were found by the court of session (affirmed upon appeal) to be in full force.
9. Though the jurisdiction of the session be properly limited to civil causes, the judges have always sustained themselves as competent to the crime of falsehood. Where the falsehood deserves death or demeribation, they, after finding the crime proved, remit the criminal to the court of justiciary. Special statute has given to the court of session jurisdiction in contraventions of law-burrows, deforcements, and breach of arrestment; and they have been in use to judge in battery pendente lite, and in usury.
10. In certain civil causes, the jurisdiction of the session is exclusive of all inferior jurisdictions; as in declarators of property, and other competitions of heritable
table rights, provings of the tenor, cessiones bonorum, restitution of minors, reductions of decrees or of writings, sales of the estates of minors or bankrupts, &c. In a second class of causes, their jurisdiction can be only exercised in the way of review, after the cause is brought from the inferior court; as in maritime and consistorial causes, which must be pursued in the first instance before the admiral or commissary; and in actions below twelve pounds Sterling, which must be commenced before the judge-ordinary. In all civil actions, which fall under neither of these classes, the jurisdiction of the session is concurrent, even in the first instance, with that of the judge-ordinary. The session may proceed as a court of equity by the rules of conscience, in abating the rigour of law, and giving aid in proper cases to such as in a court of law can have no remedy; and this power is inherent in the supreme court of every country, where separate courts are not established for law and for equity.
This court formerly met upon the 12th day of June and rose upon the 11th day of August for the summer session; but now, in consequence of an act passed in the session of parliament 1790, it meets on the 12th of May and rises on the 11th of July for the summer session; the winter sederunt still remaining as formerly, viz. from the 12th of November to the 11th of March inclusive.
11. The supreme criminal judge was styled the Justiciar; and he had anciently an universal civil jurisdiction, even in matters of heritage. He was obliged to hold two justice courts or ayres yearly at Edinburgh or Peebles, where all the freeholders of the kingdom were obliged to attend. Besides this universal court, special justice-ayres were held in all the different shires in the kingdom twice in the year. These last having gone into disuse, eight deputies were appointed, two for every quarter of the kingdom, who should make their circuits over the whole in April and October.
12. The office of deputies was suppressed in 1672; and five lords of session were added, as commissioners of justiciary, to the justice-general and justice-clerk. The justice-general, if present, is constant president of the court, and in his absence the justice-clerk. The kingdom is divided into three districts, and two of the judges are appointed to hold circuits in certain boroughs of each district twice in the year; one judge may proceed to business in the absence of his colleague. In trials before this court the evidence was always taken down in writing till the act 23d Geo. III. was passed; by which the judges may try and determine all causes by the verdict of an assize upon examining the witnesses vis a vis without reducing the testimony into writing, unless it shall appear more expedient to proceed in the former way, which they have it in their power to do. This act was at first temporary, but is now made perpetual by 27th Geo. III. cap. 18.
13. By an old statute, the crimes of robbery, rape, murder, and wilful fire raising, (the four pleas of the Crown), are said to be reserved to the King's court of justiciary; but the only crime in which, de praxi, the jurisdiction of justiciary became at last exclusive of all inferior criminal jurisdiction, was that of high treason. The court of justiciary, when sitting at Edinburgh, has a power of advocating causes from all inferior criminal judges, and of suspending their sentences.
14. The circuit-court can also judge in all criminal causes which do not infer death or demembration, upon appeal from any inferior court within their district; and has a supreme civil jurisdiction, by way of appeal, in all causes not exceeding twelve pounds Sterling, in which their decrees are not subject to review; but no appeal is to lie to the circuit, till the cause be finally determined in the inferior court.
15. The court of exchequer, as the King's cham-Court of berlain court, judged in all questions of the revenue. In exchequer, pursuance of the treaty of Union, that court was abolished, and a new court erected, consisting of the Lord High Treasurer of Great Britain, and a chief Baron, with four other Barons of Exchequer; which Barons are to be made of serjeants at law, English barristers, or Scots advocates of five years standing. This court has a privative jurisdiction conferred upon it, as to the duties of customs, excise, or other revenues appertaining to the king or prince of Scotland, and as to all honours and estates that may accrue to the crown; in which matters, they are to judge by the forms of proceeding used in the English court of exchequer, under the following limitations; that no debt due to the crown shall affect the debtor's real estate in any other manner than such estate may be affected by the laws of Scotland, and that the validity of the crown's titles to any honours or lands shall continue to be tried by the court of session. The barons have the powers of the Scots court transferred to them, of passing the accounts of sheriffs, or other officers who have the execution of writs issuing from, or returnable to, the court of exchequer, and of receiving resignations, and passing signatures of charters, gifts of casualties, &c. But tho' all these must pass in exchequer, it is the court of session only who can judge of their preference after they are completed.
16. The jurisdiction of the admiral in maritime causes was of old concurrent with that of the session. The high-admiral is declared the king's justice general upon the seas, on fresh water within flood-mark, and in all harbours and creeks. His civil jurisdiction extends to all maritime causes; and so comprehends questions of charter-parties, freights, salvages, bottomries, &c. He exercises this supreme jurisdiction by a delegate, the judge of the high court of admiralty; and he may also name inferior deputies, whose jurisdiction is limited to particular districts, and whose sentences are subject to the review of the high court. In causes which are declared to fall under the admiral's cognizance, his jurisdiction is sole; in so much, that the session itself, though it may review his decrees by suspension or reduction, cannot carry a maritime question from him by advocacy. The admiral has acquired, by usage, a jurisdiction in mercantile causes, even where they are not strictly maritime, cumulative with that of the judge-ordinary.
17. All our supreme courts have seals or signets, proper to their several jurisdictions. The courts of session and justiciary used formerly the same signet, which was called the king's, because the writs issuing from thence run in the king's name; and though the justiciary got at last a separate signet for itself, yet that of the session still retains the appellation of the king's signet. In this office are sealed summonses for citation, letters of ex-ecutorial diligence, or for staying or prohibiting of dili-
gence, and generally whatever passes by the warrant of the session, and is to be executed by the officers of the court. All these must, before sealing, be signed by the writers or clerks of the signet: But letters of diligence, where they are granted in a depending process, merely for probation, though they pass by the signet, must be subscribed by a clerk of session. The clerks of the signet also prepare and subscribe all signatures of charters, or other royal grants, which pass in exchequer.
Sheriff. SHERIFF, (from rever, governor, and sher to cut or divide), is the judge-ordinary constituted by the crown over a particular division or county. The sheriff's jurisdiction, both civil and criminal, was, in ancient times, nearly as ample within his own territory as that of the supreme courts of session and judiciary was over the whole kingdom.
2. His civil jurisdiction now extends to all actions upon contracts, or other personal obligations; forthcoming, poundings of the ground, mails and duties; and to all possessory actions, as removing, ejections, spulizies, &c.; to all briefs issuing from the chancery, as of inquest, terce, division, tutory, &c.; and even to adjudications of land estates, when proceeding on the renunciation of the apparent heir. His present criminal jurisdiction extends to certain capital crimes, as theft, and even murder, though it be one of the pleas of the crown; and he is competent to most questions of public police, and has a cumulative jurisdiction with justices of the peace in all riots and breaches of the peace.
3. Sheriffs have a ministerial power, in virtue of which they return juries, in order to the trial of causes that require juries. The writs for electing members of parliament have been, since the union, directed to the sheriffs, who, after they are executed, return them to the crown-office from whence they issued. They also execute writs issuing from the court of exchequer; and in general, take care of all estates, duties, or casualties that fall to the crown within their territory, for which they must account to the exchequer.
Lord of regality. 4. A lord of regality was a magistrate who had a grant of lands from the sovereign, with royal jurisdiction annexed thereto. His civil jurisdiction was equal to that of a sheriff; his criminal extended to the four pleas of the crown. He had a right to repledge or reclaim all criminals, subject to his jurisdiction, from any other competent court, though it were the judiciary itself, to his own. He had also right, according to the most common opinion, to the single escheat of all denounced persons residing within his jurisdiction, even though such privilege had not been expressed in the grant of regality.
Stewart. 5. The steward was the magistrate appointed by the king over such regality lands as happened to fall to the crown by forfeiture, &c. and therefore the steward's jurisdiction was equal to that of a regality. The two stewardries of Kirkcudbright, and of Orkney and Zetland, make shires or counties by themselves, and send each a representative to parliament.
Bailie. 6. Where lands not erected into a regality fell into the king's hands, he appointed a bailie over them, whose jurisdiction was equal to that of a sheriff.
7. By the late jurisdiction-act, 20 Geo. II. all heritable regalities and bailiecies, and all such heritable sheriffships and stewardries as were only parts of a shire, are dissolved; and the powers formerly vested in them are made to devolve upon such of the king's courts as these powers would have belonged to if the jurisdictions dissolved had never been granted. All sheriffships and stewardries that were no part of a shire, where they had been granted, either heritably or for life, are resumed and annexed to the crown. No high sheriff or steward can hereafter judge personally in any cause. One sheriff or steward-depute is to be appointed by the king in every shire, who must be an advocate of three years standing; and whose office as sheriff or steward-depute is now by 28. Geo. II. held ad vitam aut culpam.
8. The appanage, or patrimony, of the prince of Scotland, has been long erected into a regality-jurisdiction, called the Principality. It is personal to the king's eldest son, upon whose death or succession it returns to the crown. The prince has, or may have, his own chancery, from which his writs issue, and may name his own chamberlain and other officers for receiving and managing his revenue. The vassals of the prince are intitled to elect, or to be elected, members of parliament for counties, equally with those who hold of the crown.
9. Justices of the peace are magistrates named by the sovereign over the several counties of the kingdom, for the special purpose of preserving the public peace. Anciently their power reached little farther than to bind over disorderly persons for their appearance before the privy council or judiciary; afterwards they were authorised to judge in breaches of the peace, and in most of the laws concerning public policy. They may compel workmen or labourers to serve for a reasonable fee, and they can condemn masters in the wages due to their servants. They have power to judge in questions of highways, and to call out the tenants with their cottars and servants to perform six days work yearly for upholding them. It has been lately, however, found by the court of session, that justices have no jurisdiction whatever in common actions for debt. So that it now seems fixed, that they are incompetent in such actions, except where they are declared competent by special statute.
10. Since the union, our justices of the peace, over and above the powers committed to them by the laws of Scotland, are authorised to exercise whatever belonged to the office of an English justice, in relation to the public peace. From that time, the Scots and the English commissions have run in the same style, which contain powers to inquire into and judge in all capital crimes, witchcrafts, felonies, and several others specially enumerated; with this limitation subjoined, of which justices of the peace may lawfully inquire. Two justices can constitute a court. Special statute has given the cognizance of several matters of excise to the justices, in which their sentences are final. As to which, and the powers thereby vested in them, the reader must of necessity be referred to the excise laws; it not falling within the plan of this work, to enter into so very minute a detail as that would prove.
11. A borough is a body-corporate, made up of the inhabitants of a certain tract of ground erected by the sovereign, with jurisdiction annexed to it. Bo-
Law of Scotland. Boroughs are erected, either to be holden of the sovereign himself, which is the general case of royal boroughs; or of the superior of the lands erected, as boroughs of regality and barony. Boroughs royal have power, by their charters, to choose annually certain office-bearers or magistrates; and in boroughs of regality and barony, the nomination of magistrates is, by their charter, lodged sometimes in the inhabitants, sometimes in the superior. Bailies of boroughs have jurisdiction in matters of debt, services, and questions of possession betwixt the inhabitants. Their criminal jurisdiction extends to petty riots, and reckless fire-raising. The dean of guild is that magistrate of a royal borough who is head of the merchant-company; he has the cognizance of mercantile causes within borough; and the inspection of buildings, that they encroach neither on private property, nor on the public streets; and he may direct insufficient houses to be pulled down. His jurisdiction has no dependence on the court of the borough, or bailie-court.
Barons. 12. A baron, in the large sense of that word, is one who holds his lands immediately of the crown; and, as such, had, by our ancient constitution, right to a seat in parliament, however small his freehold might have been. The lesser barons were exempted from the burden of attending the service of parliament. This exemption grew intensibly into an utter disability in all the lesser barons from sitting in parliament, without election by the county; though no statute is to be found expressly excluding them.
13. To constitute a baron in the strict law sense, his lands must have been erected, or at least confirmed, by the king, in libram baroniam; and such baron had a certain jurisdiction, both civil and criminal, which he might have exercised, either in his own person, or by his bailie.
14. By the late jurisdiction-act, the civil jurisdiction of a baron is reduced to the power of recovering, from his vassals and tenants, the rents of his lands, and of condemning them in mill-services; and of judging in causes where the debt and damages do not exceed 40s. Sterling. His criminal jurisdiction is, by the same statute, limited to assaults, batteries, and other smaller offences, which may be punished by a fine not exceeding 20s. Sterling, or by setting the offender in the stocks in the day-time not above three hours; the fine to be levied by poinding, or one month's imprisonment. The jurisdiction formerly competent to proprietors of mines, and coal or salt works, over their workmen, is reserved; and also that which was competent to proprietors who had the right of fairs or markets, for correcting the disorders that might happen during their continuance; provided they shall exercise no jurisdiction inferring the loss of life or demerit.
Constabularies. 15. The high constable of Scotland had no fixed territorial jurisdiction, but followed the court; and had, jointly with the marischal, the cognizance of all crimes committed within two leagues of it. All other constabularies were dependent on him: these had castles, and sometimes boroughs, subject to their jurisdiction, as Dundee, Montrose, &c. and among other powers, now little known, they had the right of exercising criminal jurisdiction within their respective territories du-
ring the continuance of fairs. By the late jurisdiction-act, all jurisdictions of constabulary are dissolved, except that of high-constable.
16. The office of the Lyon King of arms was chiefly ministerial, to denounce war, proclaim peace, carry public messages, &c. But he has also a right of jurisdiction, whereby he can punish all who usurp arms contrary to the law of arms, and deprive or suspend messengers, heralds, or pursuivants, (who are officers named by himself); but he has no cognizance of the damage arising to the private party through the messenger's fault. Messengers are subservient to the supreme courts of session and justiciary; and their proper business is to execute all the king's letters either in civil or criminal causes. They must find caution for the proper discharge of their duty qua messengers; and in case of any malversation, or neglect, by which damage arises to their employers, their sureties may be recurred upon for indemnification. These sureties, however, are not answerable for the conduct of the messenger in any other capacity but qua such; and therefore, if a messenger is authorised to uplift payment from a debtor, and fails to account to his employer, the cautioner is not liable; his obligation extending only to the regular and proper duties of the office in executing the diligence, or the like.
17. Our judges had, for a long time, no other salaries or appointments than what arose from the sentences they pronounced. Our criminal judges applied to their own use the fines or illues of their several courts; and regalities had a right to the single escheat of all persons denounced, who resided within their jurisdiction; and our civil judges got a certain proportion of the sum contained in the decree pronounced. But these were all prohibited upon regular salaries being settled upon them.
The Pope, or bishop of Rome, was long acknowledged, over the western part of Christendom, for the head of the Christian church. The papal jurisdiction was abolished in Scotland anno 1560. The king was, by act 1669, declared to have supreme authority over all persons, and in all causes ecclesiastical; but this act was repealed by 1690, as inconsistent with Presbyterian church-government, which was then upon the point of being established.
2. Before the reformation from Popery, the clergy was divided into secular and regular. The secular had a particular tract of ground given them in charge, within which they exercised the pastoral office of bishop, presbyter, or other church-officer. The regular clergy had no cure of souls; but were tied down to residence in their abbacies, priories, or other monasteries; and they got the name of regular, from the rules of mortification to which they were bound, according to the institution of their several orders. Upon the vacancy of any benefice, whether secular or regular, commendators were frequently appointed to levy the fruits, as factors or ilwards during the vacancy. The Pope alone could give the higher benefices in commendam; and at last, from the plenitude of his power, he came to name commendators for life, and without any obligation
gation to account. After the reformation, several abbeys and priories were given by James VI. in perpetuum commendam, to laics.
3. Upon abolishing the Pope's authority, the regular clergy were totally suppressed; and, in place of all the different degrees which distinguished the secular clergy, we had at first only parochial presbyters or ministers, and superintendents, who had the oversight of the church within a certain district: soon thereafter the church-government became episcopal by archbishops, bishops, &c.; and after some intermediate turns, is now presbyterian by kirk-sessions, presbyteries, synods, and general assemblies.
4. Prelate, in our statutes, signifies a bishop, abbot, or other dignified clergyman, who in virtue of his office had a seat in parliament. Every bishop had his chapter, which consisted of a certain number of the ministers of the diocese, by whose assistance he managed the affairs of the church within that district. The nomination of bishops to vacant sees has been in the crown since 1540, though under the appearance of continuing the ancient right of election, which was in the chapter. The confirmation by the crown under the great seal, of the chapter's election, conferred a right to the spirituality of the benefice; and a second grant, upon the consecration of the bishop-elect, gave a title to the temporality; but this second grant fell soon into disuse.
Patronage. 5. He who founded or endowed a church was intitled to the right of patronage thereof, or advocatio ecclesie; whereby, among other privileges, he might present a churchman to the cure, in case of a vacancy. The presentee, after he was received into the church, had a right to the benefice proprio jure; and if the church was parochial, he was called a parson. The Pope claimed the right of patronage of every kirk to which no third party could show a special title; and, since the reformation, the crown, as coming in place of the Pope, is considered as universal patron, where no right of patronage appears in a subject. Where two churches are united, which had different patrons, each patron presents by turns.
6. Gentlemen of estates frequently founded colleges or collegiate churches; the head of which got the name of provost, under whom were certain prebendaries, or canons, who had their several stalls in the church, where they sung masses. Others of lesser fortunes founded chaplainries, which were donations granted for the singing of masses for deceased friends at particular altars in a church. Though all these were suppressed upon the reformation, their founders continued patrons of the endowments; out of which they were allowed to provide bursars, to be educated in any of the universities.
7. Where a fund is gifted for the establishment of a second minister in a parish where the cure is thought too heavy for one, the patronage of such benefice does not belong to the donor, but to him who was patron of the church, unless either where the donor has reserved to himself the right of patronage in the donation, or where he and his successors have been in the constant use of presenting the second minister, without challenge from the patron. The right of presenting incumbents was by 1690, c. 23. taken from patrons, and vested in the heritors and elders of the parish, upon
payment to be made by the heritors to the patron of 600 merks; but it was again restored to patrons, 10 An. c. 12, with the exception of the presentation sold in pursuance of the former act.
8. Patrons were not simply administrators of the church; for they held the fruits of the vacant benefice as their own, for some time after the reformation. But that right is now no more than a trust in the patron, who must apply them to pious uses within the parish, at the sight of the heritors, yearly as they fall due. If he fail, he loses his right of administering the vacant stipend for that and the next vacancy. The king, who is exempted from this rule, may apply the vacant stipend of his churches to any pious use, though not within the parish. If one should be ordained to a church, in opposition to the presentee, the patron, whose civil right cannot be affected by any sentence of a church-court, may retain the stipend as vacant. Patrons are to this day intitled to a seat and burial-place in the churches of which they are patrons, and to the right of all the teinds of the parish not heritably dispensed.
9. That kirks may not continue too long vacant, the patron must present to the presbytery (formerly to the bishop), a fit person for supplying the cure, within six months from his knowledge of the vacancy, otherwise the right of presentation accrues to the presbytery jure devolutio. Upon presentation by the patron, the bishop collated or conferred the benefice upon the presentee by a writing, in which he appointed certain ministers of the diocese to induce or institute him into the church; which induction completed his right, and was performed by their placing him in the pulpit, and delivering to him the bible and keys of the church. The bishop collated to the churches of which himself was patron, pleno jure, or without presentation; which he also did in menial churches, whose patronages were sunk, by the churches being appropriated to him, as part of his patrimony. Since the revolution, a judicial act of admission by the presbytery, proceeding either upon a presentation, or upon a call from the heritors and elders, or upon their own jus devolutum, completes the minister's right to the benefice.
10. Soon after the reformation, the Popish churchmen were prevailed upon to resign in the sovereign's hands a third of their benefices; which was appropriated, in the first place, for the subsistence of the reformed clergy. To make this fund effectual, particular localities were assigned in every benefice, to the extent of a third, called the assumption of thirds; and for the farther support of ministers, Queen Mary made a grant in their favour of all the small benefices not exceeding 300 merks. Bishops, by the act which restored them to the whole of their benefices, were obliged to maintain the ministers within their dioceses, out of the thirds; and in like manner, the laic titulars, who got grants of the teinds, became bound, by their acceptance thereof, to provide the kirks within their erections in competent stipends.
11. But all those expedients for the maintenance of the clergy having proved ineffectual, a commission of session for parliament was appointed in the reign of James VI. for planting kirks, and modifying stipends to ministers out of the teinds; and afterwards several other commissions were appointed, with the more ample powers of
Law of Scotland. of dividing large parishes, erecting new ones, &c. all of which were, in 1707, transferred to the court of session, with this limitation, that no parish should be disjoined, nor new church erected, nor old one removed to a new place, without the consent of three-fourths of the heritors, computing the votes, not by their numbers, but by the valuation of their rents within the parish. The judges of session, when sitting in that court, are considered as a commission of parliament, and have their proper clerks, macers, and other officers of court, as such.
Stipends. 12. The lowest stipend that could be modified to a minister by the first commission, was 500 merks, or five chalders of victual, unless where the whole teinds of the parish did not extend so far: and the highest was 1000 merks, or ten chalders. The parliament 1633 raised the minimum to eight chalders of victual, and proportionably in silver; but as neither the commission appointed by that act, nor any of the subsequent ones, was limited as to the maximum, the commissioners have been in use to augment stipends considerably above the old maximum, where there is sufficiency of free teinds, and the cure is burdensome, or living expensive.
13. Where a certain quantity of stipend is modified to a minister out of the teinds of a parish, without proportioning that stipend among the several heritors, the decree is called a decree of modification: but where the commissioners also fix the particular proportions payable by each heritor, it is a decree of modification and locality. Where a stipend is only modified, it is secured on the whole teinds of the parish, so that the minister can insist against any one heritor to the full extent of his teinds; such heritor being always intitled to relief against the rest for what he shall have paid above his just share: but where the stipend is also localised, each heritor is liable in no more than his own proportion.
Manse. 14. Few of the reformed ministers were, at first, provided with dwelling houses; most of the Popish clergy having, upon the first appearance of the reformation, let their manses in feu, or in long racks: ministers therefore got a right, in 1563, to as much of these manses as would serve them, notwithstanding such feus or racks. Where there was no parson's nor vicar's manse, one was to be built by the heritors, at the sight of the bishop, (now the presbytery), the charge not exceeding L. 1000 Scots, nor below 500 merks. Under a manse are comprehended stable, barn, and byre, with a garden; for all which it is usual to allow half an acre of ground.
15. Every incumbent is intitled at his entry to have his manse put in good condition; for which purpose, the presbytery may appoint a visitation by tradesmen, and order estimates to be laid before them of the sums necessary for the repairing, which they may proportion among the heritors according to their valuations. The presbytery, after the manse is made insufficient, ought, upon application of the heritors, to declare it a free manse; which lays the incumbent under an obligation to uphold it in good condition during his incumbency, otherwise he or his executors shall be liable in damages; but they are not bound to make up the loss arising from the necessary decay of the building by the waste of time.
16. All ministers, where there is any landward or country parish, are, over and above their stipend, intitled to a glebe, which comprehends four acres of arable land, or sixteen fowms of pasture-ground where there is no arable land (a fowm is what will graze ten sheep or one cow); and it is to be designed or marked by the bishop or presbytery out of such kirklands within the parish as lie nearest to the kirk, and, in default of kirk-lands, out of temporal lands.
17. A right of relief is competent to the heritors, whose lands are set off for the manse or glebe, against the other heritors of the parish. Manses and glebes, being once regularly designed, cannot be feued or sold by the incumbent in prejudice of his successors, which is in practice extended even to the case where such alienation evidently appears profitable to the benefice.
18. Ministers, beside their glebe, are intitled to grafs, out of a horse and two cows. And if the lands, for which the grafs may be designed, either lie at a distance, or are not fit for pasture, the heritors are to pay to the minister L. 20 Scots yearly as an equivalent. Ministers have also freedom of foggage, pasturage, fuel, seal, divot, loaning, and free ish and entry, according to use and wont: but what these privileges are, must be determined by the local custom of the several parishes.
19. The legal terms at which stipends become due to ministers are Whitunday and Michaelmas. If the incumbent be admitted to his church before Whitunday (till which term the corns are not presumed to be fully sown), he has right to that whole year's stipend; and, if he is received after Whitunday, and before Michaelmas, he is intitled to the half of that year; because, though the corns were sown before his entry, he was admitted before the term at which they are presumed to be reaped. By the same reason, if he dies or is transported before Whitunday, he has right to no part of that year; if before Michaelmas, to the half; and if not till after Michaelmas, to the whole.
20. After the minister's death, his executors have right to the annat; which, in the sense of the canon law, was a right reserved to the Pope, of the first year's fruits of every benefice. Upon a threatened invasion from England anno 1547, the annat was given by our parliament, notwithstanding this right in the Pope, to the executors of such churchmen as should fall in battle in defence of their country: but the word annat or ann, as it is now understood, is the right which law gives to the executors of ministers, of half a year's benefice over and above what was due to the minister himself for his incumbency.
21. The executors of a minister need make up no title to the ann by confirmation: neither is the right assignable by the minister, or affectable with his debts; for it never belonged to him, but is a mere gratuity given by law to those whom it is presumed the deceased could not sufficiently provide; and law has given it expressly to executors: and if it were to be governed by the rules of succession in executory, the widow, in case of no children, would get one half, the other would go to the next of kin; and where there are children, she would be intitled to a third, and the other two thirds would fall equally among the children. But the court of session, probably led by the general practice,
practice, have in this last case divided the ann into two equal parts, of which one goes to the widow, and the other among the children in capita.
22. From the great confidence that was, in the first ages of Christianity, reposed in churchmen, dying persons frequently committed to them the care of their estates, and of their orphan children; but these were simply rights of trust, not of jurisdiction. The clergy soon had the address to establish to themselves a proper jurisdiction, not confined to points of ecclesiastical right, but extending to questions that had no concern with the church. They judged not only in tenns, patronages, testaments, breach of vow, scandal, &c. but in questions of marriage and divorce, because marriage was a sacrament; in tochers, because these were given in confirmation of marriage; in all questions where an oath intervened, on pretence that oaths were a part of religious worship, &c. As churchmen came, by the means of this extensive jurisdiction, to be diverted from their proper functions, they committed the exercise of it to their officials or commissaries: hence the commissary-court was called the Bishop's Court, and Curia Christianitatis; it was also styled the Consistorial Court; from consistory, a name first given to the court of appeals of the Roman emperors, and afterwards to the courts of judicature held by churchmen.
23. At the reformation, all episcopal jurisdiction, exercised under the authority of the bishop of Rome, was abolished. As the course of justice in consistorial causes was thereby stopped, Q. Mary, besides naming a commissary for every diocese, did, by a special grant, establish a new commissary-court at Edinburgh, consisting of four judges or commissaries. This court is vested with a double jurisdiction; one diocesan, which is exercised in the special territory contained in the grant, viz. the counties of Edinburgh, Haddington, Linlithgow, Peebles, and a great part of Stirlingshire; and another universal, by which the judges confirm the testaments of all who die in foreign parts, and may reduce the decrees of all inferior commissaries, provided the reduction be pursued within a year after the decree. Bishops, upon their re-establishment in the reign of James VI. were restored to the right of naming their several commissaries.
24. As the clergy, in times of Popery, assumed a jurisdiction independent of the civil power or any secular court, their sentences could be reviewed only by the Pope, or judges delegated by him; so that, with regard to the courts of Scotland, their jurisdiction was supreme. But, by an act 1560, the appeals from our bishops' courts, that were then depending before the Roman consistory, were ordained to be decided by the court of session: and by a posterior act, 1609, the session is declared the king's great consistory, with power to review all sentences pronounced by the commissaries. Nevertheless, since that court had no inherent jurisdiction in consistorial causes prior to this statute, and since the statute gives them a power of judging only by way of advocacy, they have not, to this day, any proper consistorial jurisdiction in the first instance; neither do they pronounce sentence in any consistorial cause brought from the commissaries, but remit it back to them with instructions. By the practice immediately subsequent to the act before quoted,
they did not admit advocations from the inferior commissaries, till the cause was first brought before the commissaries of Edinburgh; but that practice is now in disuse.
25. The commissaries retain to this day an exclusive power of judging in declarators of marriage, and of the nullity of marriage; in actions of divorce and of non-adherence, of adultery, bastardy, and confirmation of testaments; because all these matters are still considered to be properly consistorial. Inferior commissaries are not competent to questions of divorce, under which are comprehended questions of bastardy and adherence, when they have a connection with the lawfulness of marriage, or with adultery.
26. Commissaries have now no power to pronounce decrees in absence for any sum above L. 40 Scots, except in causes properly consistorial: but they may authenticate tutorial and curatorial inventories; and all bonds, contracts, &c. which contain a clause for registration in the books of any judge competent, and protests on bills, may be registered in their books.
Persons, when considered in a private capacity, are chiefly distinguished by their mutual relations; as husband and wife, tutor and minor, father and child, master and servant. The relation of husband and wife is constituted by marriage; which is the conjunction of man and wife, vowing to live inseparably till death.
2. Marriage is truly a contract, and so requires the consent of parties. Idiots, therefore, and furious persons, cannot marry. As no person is presumed capable of consent within the years of pupillarity, which, by our law, lasts till the age of 14 in males, and 12 in females, marriage cannot be contracted by pupils; but if the married pair shall cohabit after puberty, such acquiescence gives force to the marriage. Marriage is fully perfected by consent; which, without consummation, founds all the conjugal rights and duties. The consent requisite to marriage must be de presenti. A promise of marriage (stipulatio sponsalitatis) may be resiled from, as long as matters are entire; but if any thing be done by one of the parties, whereby a prejudice arises from the non-performance, the party resiling is liable in damages to the other. The canons, and after them our courts of justice, explain a copula subsequent to a promise of marriage into actual marriage.
3. It is not necessary, that marriage should be celebrated by a clergyman. The consent of parties may be declared before any magistrate, or simply before witnesses: and though no formal consent should appear, marriage is presumed from the cohabitation, or living together at bed and board, of a man and woman who are generally reputed husband and wife. One's acknowledgment of his marriage to the midwife whom he called to his wife, and to the minister who baptized his child, was found sufficient presumptive evidence of marriage, without the aid either of cohabitation, or of habere et repute. The father's consent was, by the Roman law, essential to the marriage of children in familia: but, by our law, children may enter into marriage, without the knowledge, and even against the remonstrances, of a father.
4. Marriage is forbidden within certain degrees of blood. By the law of Moses (Leviticus xviii.), which, by the act 1567. c. 15. has been adopted by us, seconds in blood, and all remoter degrees, may all lawfully marry. By seconds in blood are meant first cousins. Marriage in the direct line is forbidden in infinitum; as it is also in the collateral line in the special case where one of the parties is loco parentis to the other, as grand-uncle, great grand-uncle, &c. with respect to his grand niece, &c. The same degrees that are prohibited in consanguinity, are prohibited in affinity; which is the tie arising from marriage, betwixt one of the married pair, and the blood relations of the other. Marriage also, where either of the parties is naturally unfit for generation, or stands already married to a third person, is ipso jure null.
5. To prevent bigamy and incestuous marriages, the church has introduced proclamation of bans; which is the ceremony of publishing the names and designations of those who intend to intermarry, in the churches where the bride and bridegroom reside, after the congregation is assembled for divine service; that all persons who know any objection to the marriage may offer it. When the order of the church is observed, the marriage is called regular; when otherwise, clandestine. Marriage is valid when entered into in either of these ways; but when clandestine, there are certain penalties imposed upon the parties as well as the celebrator and witnesses.
6. By marriage, a society is created between the married pair, which draws after it a mutual communication of their civil interests, in as far as is necessary for maintaining it. As the society lasts only for the joint lives of the socii; therefore rights that have the nature of a perpetuity, which our law styles heritable, are not brought under the partnership or communion of goods; as a land-estate, or bonds bearing a yearly interest: it is only moveable subjects, or the fruits produced by heritable subjects during the marriage, that become common to man and wife.
7. The husband, as the head of the wife, has the sole right of managing the goods in communion, which is called jus mariti. This right is so absolute, that it bears but little resemblance to a right of administering a common subject. For the husband can, in virtue thereof, sell, or even gift, at his pleasure, the whole goods falling under communion; and his creditors may affect them for the payment of his proper debts: so that the jus mariti carries all the characters of an assignment, by the wife to her husband, of her moveable estate. It arises ipso jure from the marriage; and therefore needs no other constitution. But a stranger may convey an estate to a wife, so as it shall not be subject to the husband's administration; or the husband himself may, in the marriage-contract, renounce his jus mariti in all or any part of his wife's moveable estate.
8. From this right are excepted paraphernal goods, which, as the word is understood in our law, comprehends the wife's wearing apparel, and the ornaments proper to her person; as necklaces, ear-rings, breast or arm jewels, buckles, &c. These are neither alienable by the husband, nor affectable by his creditors. Things of promiscuous use to husband and wife, as plate, medals, &c. may become paraphernal, by the
husband's giving them to the wife, at or before marriage; but they are paraphernal only in regard to that husband who gave them as such, and are esteemed common moveables, if the wife, whose paraphernalia they were, be afterwards married to a second husband; unless he shall in the same manner appropriate them to her.
9. The right of the husband to the wife's moveable burdens-estate, is burdened with the moveable debts contracted by her before marriage: and as his right is universal, jus mariti, so also is his burden; for it reaches to her whole moveable debts, though they should far exceed her moveable estate. Yet the husband is not considered as the true debtor in his wife's debts. In all actions for payment, she is the proper defender: the husband is only cited for his interest, that is, as curator to her, and administrator of the society-goods. As soon therefore as the marriage is dissolved, and the society goods thereby suffer a division, the husband is no farther concerned in the share belonging to his deceased wife; and consequently is no longer liable to pay her debts, which must be recovered from her representatives, or her separate estate.
10. This obligation upon the husband is, however, perpetuated against him (1.) Where his proper estate, real or personal, has been affected, during the marriage, by complete legal diligence; in which case, the husband must, by the common rules of law, relieve his property from the burden with which it stands charged; but the utmost diligence against his person is not sufficient to perpetuate the obligation; nor even incomplete diligence against his estate. (2.) The husband continues liable, even after the wife's death, in so far as he is lucratius or profited by her estate: Still, however, the law does not consider a husband who has got but a moderate touch with the wife as lucratius by the marriage; it is the excess only which it considers as lucrum, and that must be estimated by the quality of the parties and their condition of life.—As he was at no time the proper debtor in his wife's moveable debts; therefore, though he should be lucratius, he is, after the dissolution, only liable for them subsidiarie, i. e. if her own separate estate is not sufficient to pay them off.
11. Where the wife is debtor in that sort of debt, which, if it had been due to her, would have excluded the jus mariti, e. g. in bonds bearing interest, which, as we shall afterwards see (clxiii. 4.), continues heritable as to the rights of husband and wife, notwithstanding of the enactment of the statute 1661, which renders them moveable in certain other respects, the husband is liable only for the bygone interests, and those that may grow upon the debt during the marriage; because his obligation for her debts must be commensurate to the interest he has in her estate. It is the husband alone who is liable in personal diligence for his wife's debts, while the marriage subsists: the wife, who is the proper debtor, is free from all personal execution upon them while she is vestita viro.
12. The husband by marriage becomes the perpetual curator of the wife. From this right it arises, 1. That no suit can proceed against the wife till the husband be cited for his interest. 2. All deeds, done by a wife without the husband's consent, are null; neither can she sue in any action without the husband's con-
concurrence. Yet where the husband refuses, or by reason of forfeiture, &c. cannot concur; or where the action is to be brought against the husband himself, for performing his part of the marriage articles; the judge will authorise her to sue in her own name. The effects arising from this curatorial power discover themselves even before marriage, upon the publication of banns; after which the bride, being no longer sui juris, can contract no debt, nor do any deed, either to the prejudice of her future husband, nor even to her own. But in order to this, it is necessary that the banns shall have been published in the bride's parish church as well as in that of her husband.
13. If the husband should either withdraw from his wife, or turn her out of doors; or if, continuing in family with her, he should by severe treatment endanger her life; the commissaries will authorise a separation a mensa et thoro, and give a separate alimony to the wife, suitable to her husband's estate, from the time of such separation until either a reconciliation or a sentence of divorce.
14. Certain obligations of the wife are valid, notwithstanding her being sub cura mariti; ex. gr. obligations arising from delict; for wives have no privilege to commit crimes. But if the punishment resolves into a pecuniary mulct, the execution of it must, from her incapacity to fulfil, be suspended till the dissolution of the marriage, unless the wife has a separate estate exempted from the jus mariti.
15. Obligations arising from contract, affect either the person or the estate. The law has been so careful to protect wives while sub cura mariti, that all personal obligations granted by a wife, though with the husband's consent, as bonds, bills, &c. are null; with the following exceptions: (1.) Where the wife gets a separate peculium or stock, either from her father or a stranger, for her own or her children's alimony, she may grant personal obligations in relation to such stock: and by stronger reason, personal obligations granted by a wife are good, when her person is actually withdrawn from the husband's power by a judicial separation. (2.) A wife's personal obligation, granted in the form of a deed inter viros, is valid, if it is not to take effect till her death. (3.) Where the wife is by the husband proposita negotiis, entrusted with the management either of a particular branch of business or of his whole affairs, all the contracts she enters into in the exercise of her propositura are effectual, even though they be not reduced to writing, but should arise merely ex re, from furnishings made to her: but such obligations have no force against the wife; it is the husband only, by whose commission she acts, who is thereby obliged.
16. A wife, while she remains in family with her husband, is considered as proposita negotiis domesticis; and consequently may provide things proper for the family; for the price whereof the husband is liable, tho' they should be misapplied, or though the husband should have given her money to provide them elsewhere. A husband who suspects that his wife may hurt his fortune by high living, may use the remedy of inhibition against her; by which all persons are interpellated from contracting with her, or giving her credit. After the completing of this diligence, whereby the propositura falls, the wife cannot bind the husband, un-
less for such reasonable furnishings as he cannot instruct that he provided her with aliunde. As every man, and consequently every husband, has a right to remove his managers at pleasure, inhibition may pass at the suit of the husband against the wife, though he should not offer to justify that measure by an actual proof of the extravagance or profusion of her temper.
17. As to rights granted by the wife affecting her Right estate; she has no moveable estate, except her paraphernalia; and these she may alien or impignor, with consent of the husband. She can, without the husband, bequeath by testament her share of the goods in communion; but she cannot dispose of them inter viros; for she herself has no proper right to them while the marriage subsists. A wife can lawfully oblige herself, in relation to her heritable estate, with consent of her husband: for though her person is in some sense sunk by the marriage, she continues capable of holding a real estate; and in such obligations her estate is considered, and not her person. A husband, though he be curator to his wife, can, by his acceptance or intervention, authorise rights granted by her in his own favour: for a husband's curatory differs in this respect from the curatory of minors, for it is not merely intended for the wife's advantage, but is considered as a mutual benefit to both.
18. All donations, whether by the wife to the husband, or by the husband to the wife, are revocable by the donor; but if the donor dies without revocation, the right becomes absolute. Where the donation is not pure, it is not subject to revocation: thus, a grant made by the husband, in consequence of the natural obligation that lies upon him to provide for his wife, is not revocable, unless in so far as it exceeds the measure of a rational settlement; neither are remuneratory grants revocable, where mutual grants are made in consideration of each other, except where an onerous cause is simulated, or where what is given hinc inde bears no proportion to each other. All voluntary contracts of separation, by which the wife is provided in an yearly alimony, are effectual as to the time past, but revocable either by the husband or wife.
19. As wives are in the strongest degree subject to Ratification the influence of their husbands, third parties, in whose favours they had made grants, were frequently vexed with actions of reduction, as if the grant had been extorted from the wife through the force or fear of the husband. To secure the grantees against this danger, ratifications were introduced, whereby the wife, appearing before a judge, declares upon oath, her husband not present, that she was not induced to grant the deed ex vi aut metu. A wife's ratification is not absolutely necessary for securing the grantee: law indeed allows the wife to bring reduction of any deed she has not ratified, upon the head of force or fear; of which, if she bring sufficient evidence, the deed will be set aside; but if she fails in the proof, it will remain effectual to the receiver.
20. Marriage, like other contracts, might, by the Roman law, be dissolved by the contrary consent of parties; but, by the law of Scotland, it cannot be dissolved till death, except by divorce, proceeding either upon the head of adultery or of wilful desertion.
21. Marriage is dissolved by death, either within year and day from its being contracted, or after year and
and day. If it is dissolved within year and day, all rights granted in consideration of the marriage (unless guarded against in the contract) become void, and things return to the same condition in which they stood before the marriage; with this restriction, that the husband is considered as a bona fide possessor, in relation to what he has consumed upon the faith of his right; but he is liable to repay the tocher, without any deduction, in consideration of his family-expence during the marriage. If things cannot be restored on both sides, equity hinders the restoring of one party and not the other. In a case which was lately before the court of session, it was determined, after a long hearing in presence, that where a marriage had been dissolved within the year without a living child, by the death of the husband, the widow was intitled to be alimented out of an estate of which he died possessed, though there were no conventional provisions stipulated in favour of the wife.
22. Upon the dissolution of a marriage, after year and day, the surviving husband becomes the irrevocable proprietor of the tocher; and the wife, where she survives, is intitled to her jointure, or to her legal provisions. She has also right to mournings, suitable to the husband's quality; and to alimony from the day of his death till the term at which her liferent provision, either legal or conventional, commences. If a living child be procreated of the marriage, the marriage has the same effect as if it had subsisted beyond the year. A day is adjected to the year, in majorem evidentiam, that it may clearly appear that the year itself is elapsed; and therefore, the running of any part of the day, after the year, has the same effect as if the whole were elapsed. The legal right of courtsey competent to the surviving husband is explained below, No clxx. 28.
23. Divorce is such a separation of married persons, during their lives, as looses them from the nuptial tie, and leaves them at freedom to intermarry with others. But neither adultery, nor wilful desertion, are grounds which must necessarily dissolve marriage; they are only handles, which the injured party may take hold of to be free. Cohabitation, therefore, by the injured party, after being in the knowledge of the acts of adultery, implies a passing from the injury; and no divorce can proceed, which is carried on by collusion betwixt the parties, lest, contrary to the first institution of marriage, they might disengage themselves by their own consent: and though, after divorce, the guilty person, as well as the innocent, may contract second marriages; yet, in the case of divorce upon adultery, marriage is by special statute (1600. c. 20.) prohibited betwixt the two adulterers.
24. Where either party has deserted from the other for four years together, that other may sue for adherence. If this has no effect, the church is to proceed, first by admonition, then by excommunication; all which previous steps are declared to be a sufficient ground for pursuing a divorce. De praxi, the commissaries pronounce sentence in the adherence, after one year's desertion; but four years must intervene between the first desertion and the decree of divorce.
25. The legal effects of divorce on the head of desertion are, that the offending husband shall restore the tocher, and forfeit to the wife all her provisions, legal
and conventional; and, on the other hand, the offending wife shall forfeit to the husband her tocher, and all the rights that would have belonged to her in the case of her survivance. This was also esteemed the rule in divorces upon adultery. But by a decision of the court of session 1662, founded on a tract of ancient decisions recovered from the records, the offending husband was allowed to retain the tocher.
1. The stages of life principally distinguished in law are, pupillarity, puberty or minority, and majority.
A child is under pupillarity, from the birth to 14 years of age if a male, and till 12 if a female. Minority begins where pupillarity ends, and continues till majority; which, by the law of Scotland, is the age of 21 years complete, both in males and females: but minority, in a large sense, includes all under age, whether pupils or puberes. Because pupils cannot in any degree act for themselves, and minors seldom with discretion, pupils are put by law under the power of tutors, and minors may put themselves under the direction of curators. Tutory is a power and faculty to govern the person, and administer the estate, of a pupil. Tutors are either nominate, of law, or dative.
2. A tutor nominate is he who is named by a father, in his testament or other writing, to a lawful child. Such tutor is not obliged to give caution for the faithful discharge of his office; because his fidelity is presumed to have been sufficiently known to the father.
3. If there be no nomination by the father, or if the tutors nominate do not accept, or if the nomination falls by death or otherwise, there is place for a tutor of law. This sort of tutory devolves upon the next agnate; by which we understand he who is nearest Agnates. related by the father, though females intervene.
4. Where there are two or more agnates equally near to the pupil, he who is intitled to the pupil's legal succession falls to be preferred to the others. But as the law suspects that he may not be over careful to preserve a life which stands in the way of his own interest, this sort of tutor is excluded from the custody of the pupil's person; which is commonly committed to the mother, while a widow, until the pupil be seven years old; and, in default of the mother, to the next cognate, i. e. the highest relation by the mother. The tutor of law must (by act 1474) be at least 25 years of age. He is served or declared by a jury of sworn men, who are called upon a brief issuing from the chancery, which is directed to any judge having jurisdiction. He must give security before he enters upon the management.
5. If no tutor of law demands the office, any person, even a stranger, may apply for a tutory-dative. But because a tutor in law ought to be allowed a competent time to deliberate whether he will serve or not, no tutory-dative can be given till the elapsing of a year from the time at which the tutor of law had first a right to serve. It is the king alone, as the father of his country, who gives tutors-dative, by his court of exchequer; and by act 1672, no gift of tutory can pass in exchequer, without the citation or consent of
the next of kin to the pupil, both by the father and mother, nor till the tutor give security, recorded in the books of exchequer. There is no room for a tutor of law, or tutor-dative, while a tutor-nominate can be hoped for: and tutors of law, or dative, even after they have begun to act, may be excluded by the tutor-nominate, as soon as he offers to accept, unless he has expressly renounced the office. If a pupil be without tutors of any kind, the court of session will, at the suit of any kinsman, name a factor (steward) for the management of the pupil's estate.
6. After the years of pupillarity are over, the minor is considered as capable of acting by himself, if he has confidence enough of his own capacity and prudence. The only two cases in which curators are imposed upon minors are, (1.) Where they are named by the father, in a state of health. (2.) Where the father is himself alive; for a father is ipso jure, without any service, administrator, that is, both tutor and curator of law, to his children, in relation to whatever estate may fall to them during their minority. This right in the father does not extend to grandchildren, nor to such even of his immediate children as are forisfiliated. Neither has it place in subjects which are left by a stranger to the minor, exclusive of the father's administration. If the minor chooses to be under the direction of curators, he must raise and execute a summons, citing at least two of his next of kin to appear before his own judge-ordinary, upon nine days warning (by act 1555.) At the day and place of appearance, he offers to the judge a list of those whom he intends for his curators: such of them as resolve to undertake the office must sign their acceptance, and give caution; upon which an act of curatory is extracted.
7. These curators are styled ad negotia; to distinguish them from another sort called curators ad lites, who are authorised by the judge to concur with a pupil or minor in actions of law, either where he is without tutors and curators, or where his tutors and curators are parties to the suit. This sort is not obliged to give caution, because they have no intermeddling with the minor's estate: they are appointed for a special purpose; and when that is over, their office is at an end. Women are capable of being tutors and curators, under the following restrictions: (1.) The office of a female tutor or curator falls by her marriage, even though the nomination should provide otherwise; for she is no longer sui juris, and incapable of course of having another under her power. (2.) No woman can be tutor of law. Pupils are (by act 1700) declared incapable of tutory or curatory. Where the minor has more tutors and curators than one, who are called in the nomination to the joint management, they must all concur in every act of administration; where a certain number is named for a quorum, that number must concur: where any one is named sine quo non, no act is valid without that one's special concurrence. But if they are named without any of these limitations, the concurrence of the majority of the nominees then alive is sufficient.
8. In this, tutory differs from curatory, that as pupils are incapable of consent, they have no person capable of acting; which defect the tutor supplies: but a minor pater can act for himself. Hence, the tutor
subscribes alone all deeds of administration: but in curatory, it is the minor who subscribes as the proper party; the curator does no more than consent. Hence also, the persons of pupils are under the power either of their tutors or of their nearest cognates; but the minor, after pupillarity, has the disposal of his own person, and may reside where he pleases. In most other particulars, the nature, the powers, and the duties of the two offices coincide. Both tutors and curators must, previous to their administration, make a judicial inventory, subscribed by them and the next of kin, before the minor's judge-ordinary, of his whole estate personal and real; of which, one subscribed duplicate is to be kept by the tutors or curators themselves; another, by the next of kin on the father's side; and a third, by the next of kin on the mother's. If any estate belonging to the minor shall afterwards come to their knowledge, they must add it to the inventory within two months after their attaining possession thereof. Should they neglect this, the minor's debtors are not obliged to make payment to them: they may be removed from their offices as suspected; and they are intitled to no allowance for the sums disbursed by them in the minor's affairs (act 1672), except the expence laid out upon the minor's entertainment, upon his lands and houses, and upon completing his titles.
9. Tutors and curators cannot grant leases of the minor's lands, to endure longer than their own office; nor under the former rental, without either a warrant from the court of session, or some apparent necessity.
10. They have power to sell the minor's moveables; but cannot sell their pupil's land-estate, without the authority of a judge, yet this restraint reaches not to such alienations as the pupil could by law be compelled to grant, e.g. to renunciations of wadsets upon redemption by the reverser; for in such case, the very tenor of his own right lays him under the obligation; nor to the renewal of charters to heirs; but the charter must contain no new right in favour of the heir. The alienation, however, of heritage by a minor, with consent of his curators, is valid.
11. Tutors and curators cannot, contrary to the nature of their trust, authorise the minor to do any deed for their own benefit; nor can they acquire any debt affecting the minor's estate: and, where a tutor or curator makes such acquisition, in his own name, for a less sum than the right is intitled to draw, the benefit thereof accrues to the minor. It seems, however, that such purchase would be considered as valid, provided it were bona fide acquired at a public sale; for in such case it occurs that the tutor or curator is in fact ameliorating the situation of his ward by enhancing the value of his property by a fair competition. In general, it seems to be the genius and spirit of our law, that tutors and curators shall do every thing in their power towards the faithful and proper discharge of their respective offices.
12. By the Roman law, tutory and curatory, being munera publica, might be forced upon every one who had not a relevant ground of excuse: but, with us, the persons named to these offices may either accept or decline: and where a father, in liege pouille (when in a state of health), names certain persons both as tutors and curators to his children, though they have acted
as tutors, they may decline the office of curatory. Tutors and curators having once accepted, are liable in diligence, that is, are accountable for the consequences of their neglect in any part of their duty from the time of their acceptance. They are accountable singuli in solidum, i. e. every one of them is answerable, not only for his own diligence, but for that of his co-tutors; and any one may be sued without citing the rest: but he who is condemned in the whole, has action of relief against his co-tutors.
13. From this obligation to diligence, we may except, (1.) Fathers or administrators in law, who, from the presumption that they act to the best of their power for their children, are liable only for actual intromissions. (2.) Tutors and curators named by the father in consequence of the act 1696, with the special provisos, that they shall be liable barely for intromissions, not for omissions; and that each of them shall be liable only for himself, and not in solidum for the co-tutors: but this power of exemption from diligence is limited to the estate descending from the father himself. Tutors or curators are not intitled to any salary or allowance for pains, unless a salary has been expressly contained in the testator's nomination; for their office is presumed gratuitous.
14. Though no person is obliged to accept the office of tutor or curator; yet having once accepted, he cannot throw it up or renounce it without sufficient cause; but, if he should be guilty of misapplying the minor's money, or fail in any other part of his duty, he may be removed at the suit of the minor's next in kin, or by a co-tutor or co-curator. Where the misconduct proceeds merely from indolence or inattention, the court, in place of removing the tutor, either join a curator with him, or, if he be a tutor nominate, they oblige him to give caution for his past and future management.
15. The offices of tutory and curatory expire also by the pupil's attaining the age of puberty, or the minor's attaining the age of 21 years complete; and by the death either of the minor, or of his tutor and curator. Curatory also expires by the marriage of a female minor, who becomes thereby under the coverture of her own husband. After expiry of the office, reciprocal actions lie at the instance both of the tutors and curators, and of the minor. That at the instance of the minor is called actio tutela directa, by which he can compel the tutors to account; that at the instance of the tutors, actio tutela contraria, by which the minor can be compelled to repeat what has been profitably expended during the administration: but this last does not lie till after accounting to the minor; for till then the tutors are presumed intus habere to have effects in their own hands for answering their disbursements.
16. Deeds either by pupils, or by minors having curators without their consent, are null; but they oblige the granters, in as far as relates to sums profitably applied to their use. A minor under curators can indeed make a testament by himself; but whatever is executed in the form of a deed inter vivos, requires the curator's consent. Deeds by a minor who has no curators, are as effectual as if he had had curators, and signed them with their consent; he may even alien his heritage, without the interposition of a judge.
ed in their minority, that are hurtful to them. Deeds, in themselves void, need not the remedy of restitution; but where hurtful deeds are granted by a tutor in his pupil's affairs, or by a minor who has no curators, as these deeds subsist in law, restitution is necessary: and even where a minor, having curators, executes a deed hurtful to himself with their consent, he has not only action against the curators, but he has the benefit of restitution against the deed itself. The minor cannot be restored, if he does not raise and execute a summons for reducing the deed, ex capite minorennitatis et lesionis, before he be 25 years old. These four years, between the age of 21 and 25, called quadrennium utile, are indulged to the minor, that he may have a reasonable time, from that period, when he is first presumed to have the perfect use of his reason, to consider with himself what deeds done in his minority have been truly prejudicial to him.
18. Questions of restitution are proper to the court of session. Two things must be proved by the minor, in order to the reduction of the deed: (1.) That he was minor when it was signed; (2.) That he is hurt or lesioned by the deed. This lesion must not proceed merely from accident; for the privilege of restitution was not intended to exempt minors from the common misfortunes of life; it must be owing to the imprudence or negligence of the minor, or his curator.
19. A minor cannot be restored against his own default or fraud; e.g. if he should induce one to bargain with him by saying he was major. (2.) Restitution is excluded, if the minor, at any time after majority, has approved of the deed, either by a formal ratification, or tacitly by payment of interest, or by other acts inferring approbation. (3.) A minor, who has taken himself to business, as a merchant-shopkeeper, &c. cannot be restored against any deed granted by him in the course of that business, especially if he was proximus majorrennitati at signing the deed. (4.) According to the more common opinion, a minor cannot be restored in a question against a minor, unless some gross unfairness shall be qualified in the bargain.
20. The privilege of restitution does not always die with the minor himself. (1.) If a minor succeeds to a minor, the time allowed for restitution is governed by the minority of the heir, not of the ancestor. (2.) If a minor succeeds to a major, who was not full 25, the privilege continues with the heir during his minority; but he cannot avail himself of the anni utiles, except in so far as they were unexpired at the ancestor's death. (3.) If a major succeeds to a minor, he has only the quadrennium utile, after the minor's death; and if he succeeds to a major dying within the quadrennium, no more of it can be profitable to him than what remained when the ancestor died.
21. No minor can be compelled to state himself as a defender, in any action, whereby his heritable estate flowing from ancestors may be evicted from him, by one pretending a preferable right.
22. This privilege is intended merely to save minors from the necessity of disputing upon questions of preference. It does not therefore take place, (1.) Where the action is pursued on the father's falsehood or deceit. (2.) Upon his obligation to convey heritage. (3.) On his liquid bond for a sum of money, though such action should have the effect to carry off the minor's estate.
estate by adjudication. (4.) Nor in actions pursued by the minor's superior, upon feudal casualties. (5.) This privilege cannot be pleaded in bar of an action which had been first brought against the father, and is only continued against the minor; nor where the father was not in the peaceable possession of the heritable subject at his death. Before the minor can plead it, he must be served heir to his father. The persons of pupils are by said act 1696 protected from imprisonment on civil debts.
23. Curators are given, not only to minors, but in general to every one who, either through defect of judgment, or unfitness of disposition, is incapable of rightly managing his own affairs. Of the first sort, are idiots and furious persons. Idiots, or fatui, are entirely deprived of the faculty of reason. The disemper of the furious person does not consist in the defect of reason; but in an overheated imagination, which obstruets the application of reason to the purposes of life. Curators may be also granted to lunatics; and even to persons dumb and deaf, though they are of sound judgement, where it appears that they cannot exert it in the management of business. Every person, who is come of age, and is capable of acting rationally, has a natural right to conduct his own affairs. The only regular way, therefore, of appointing this sort of curators, is by a jury summoned upon a brief from the chancery; which is not, like the brief of common tutory, directed to any judge-ordinary, but to the judge of the special territory where the person alleged to be fatuous or furious resides; that, if he is truly of sound judgement, he may have an opportunity to oppose it: and for this reason, he ought to be made a party to the brief. The curatory of idiots and furious persons belongs to the nearest agnate; but a father is preferred to the curatory of his fatuous son, and the husband to that of his fatuous wife, before the agnate.
24. A clause is inserted in the brief, for inquiring how long the fatuous or furious person has been in that condition; and the verdict to be pronounced by the inquest has a retrospective effect; for it is declared a sufficient ground, without further evidence, for reducing all deeds granted after the period at which it appeared by the proof that the fatuity or furiosity began. But, as fatuous and furious persons are, by their very state, incapable of being obliged, all deeds done by them may be declared void, upon proper evidence of their fatuity at the time of signing, though they should never have been cognosced idiots by an inquest.
25. We have some few instances of the sovereign's giving curators to idiots, where the next agnate did not claim; but such gifts are truly deviations from our law, since they pass without any inquiry into the state of the person upon whom the curatory is imposed. Hence the curator of law to an idiot, serving quandocunque, is preferred, as soon as he offers himself, before the curator-dative. This sort of curatory does not determine by the lucid intervals of the person sub cura; but it expires by his death, or perfect return to a sound judgement; which last ought regularly to be declared by the sentence of a judge.
26. Persons, let them be ever so profuse, or liable to be imposed upon, if they have the exercise of reason, can effectually oblige themselves, till they are fettered by law. This may be done by Interdiction, which is
a legal restraint laid upon such persons from signing any deed to their own prejudice, without the consent of their curators or interdictors.
27. There could be no interdiction, by our ancient practice, without a previous inquiry into the person's condition. But as there were few who could bear the shame that attends judicial interdiction, however necessary the restraint might have been, voluntary interdiction has received the countenance of law; which is generally executed in the form of a bond, whereby the grantor obliges himself to do no deed that may affect his estate, without the consent of certain friends therein mentioned. Though the reasons inductive of the bond should be but gently touched in the recital, the interdiction stands good. Voluntary interdiction, tho' it be imposed by the sole act of the person interdicted, cannot be recalled at his pleasure: but it may be taken off, (1.) By a sentence of the court of session, declaring, either that there was, from the beginning, no sufficient ground for the restraint; or that the party is, since the date of the bond, become rei sui providus. (2.) It falls, even without the authority of the lords, by the joint act of the person interdicted, and his interdictors, concurring to take it off. (3.) Where the bond of interdiction requires a certain number as a quorum, the restraint ceases, if the interdictors shall by death be reduced to a lesser number.
28. Judicial interdiction is imposed by a sentence of the court of session. It commonly proceeds on an action brought by a near kinsman to the party; and sometimes from the nobile officium of the court, when they perceive, during the pendency of a suit, that any of the litigants is, from the facility of his temper, subject to imposition. This sort must be taken off by the authority of the same court that imposed it.
29. An interdiction need not be served against the person interdicted; but it must be executed, or publication of interdiction by a messenger, at the market cross of the jurisdiction where he resides, by publicly reading the interdiction there, after three oyesles made for convoking the lieges. A copy of this execution must be affixed to the cross; and thereafter, the interdiction, with its execution, must (by the act 1581) be registered in the books both of the jurisdiction where the person interdicted resides and where his lands lie, or (by the act 1600) in the general register of the session, within 40 days from the publication. An interdiction, before it is registered, has no effect against third parties, tho' they should be in the private knowledge of it; but it operates against the interdictors themselves, as soon as it is delivered to them.
30. An interdiction, duly registered, has this effect, that all deeds done thereafter, by the person interdicted, without the consent of his interdictors, affecting his heritable estate, are subject to reduction. Registration in the general register secures all his lands from alienation, wherever they lie; but where the interdiction is recorded in the register of a particular shire, it covers no lands except those situated in that shire. But persons interdicted have full power to dispose of their moveables, not only by testament, but by present deeds of alienation: And creditors, in personal bonds granted after interdiction, may use all execution against their debtor's person and moveable estate: such bonds being only subject to reduction in so far as diligence
lignence against the heritable estate may proceed upon them.
31. All onerous or rational deeds granted by the person interdicted, are as effectual, even without the consent of the interdictors, as if the granter had been laid under no restraint; but he cannot alter the succession of his heritable estate, by any settlement, let it be ever so rational. No deed, granted with consent of the interdictors, is reducible, though the strongest lesion or prejudice to the granter should appear: the only remedy competent, in such case, is an action by the granter against his interdictors, for making up to him what he has lost through their undue consent. It is no part of the duty of interdictors, to receive sums or manage any estate; they are given merely ad auctoritatem praefandam, to interpose their authority to reasonable deeds: and so are accountable for nothing but their fraud or fault, in consenting to deeds hurtful to the person under their care.
32. The law concerning the state of children falls next to be explained. Children are either born in wedlock, or out of it. All children, born in lawful marriage or wedlock, are presumed to be begotten by the person to whom the mother is married; and consequently to be lawful children. This presumption is so strongly founded, that it cannot be defeated but by direct evidence that the mother's husband could not be the father of the child, e. g. where he is impotent, or was absent from the wife till within six lunar months of the birth. The canonists indeed maintain, that the concurring testimony of the husband and wife, that the child was not procreated by the husband, is sufficient to elide this legal presumption for legitimacy: but it is an agreed point, that no regard is to be paid to such testimony, if it be made after they have owned the child to be theirs. A father has the absolute right of disposing of his children's person, of directing their education, and of moderate chastisement; and even after they become puberes, he may compel them to live in family with him, and to contribute their labour and industry, while they continue there, towards his service. A child who gets a separate stock from the father for carrying on any trade or employment, even though he should continue in the father's house, may be said to be emancipated or forisfamiliarized, in so far as concerns that stock; for the profits arising from it are his own. Forisfamiliarization, when taken in this sense, is also inferred by the child's marriage, or by his living in a separate house, with his father's permission or good-will. Children, after their full age of twenty-one years, become, according to the general opinion, their own masters: and from that period are bound to the father only by the natural ties of duty, affection, and gratitude. The mutual obligations between parents and children to maintain each other, are explained afterwards, No clxxxiii. 4.
33. Children born out of wedlock, are styled natural children, or bastards. Bastards may be legitimated or made lawful, (1.) By the subsequent intermarriage of the mother of the child with the father. And this sort of legitimation intitles the child to all the rights of lawful children. The subsequent marriage, which produces legitimation, is considered by the law to have been entered into when the child legi-
timated was begotten; and hence, if he be a male, he excludes, by his right of primogeniture, the sons procreated after the marriage, from the succession of the father's heritage, though these sons were lawful children from the birth. Hence, also, those children only can be thus legitimated, who are begotten of a woman whom the father might at that period have lawfully married. (2.) Bastards are legitimated by letters of legitimation from the sovereign. No clxxxii. 3.
34. As to the power of masters over their servants: Servants All servants now enjoy the same rights and privileges with other subjects, unless in so far as they are tied down by their engagements of service. Servants are either necessary or voluntary. Necessary are those whom law obliges to work without wages, of whom immediately. Voluntary servants engage without compulsion, either for mere subsistence, or also for wages. Those who earn their bread in this way, if they should stand off from engaging, may be compelled to it by the justices of the peace, who have power to fix the rate of their wages.
35. Colliers, coal-bearers, salters, and other persons necessary to collieries and salt-works, as they are particularly described by act 1661, were formerly tied down to perpetual service at the works to which they had once entered. Upon a sale of the works, the right of their service was transferred to the new proprietor. All persons were prohibited to receive them into their service, without a testimonial from their last master; and if they deserted to another work, and were redemanded within a year thereafter, he who had received them was obliged to return them within twenty-four hours, under a penalty. But though the proprietor should neglect to require the deserter within the year, he did not, by that short prescription, lose his property in him. Colliers, &c. where the colliery to which they were restricted was either given up, or not sufficient for their maintenance, might lawfully engage with others; but if that work should be again set a-going, the proprietor might reclaim them back to it.
36. But by 15 Geo. III. c. 28. these restraints, the only remaining vestiges of slavery in the law of Scotland, are abrogated; and, after the 1st July 1775, all colliers, coal-bearers, and salters, are declared to be upon the same footing with other servants or labourers. The act subjects those who were bound prior to the 1st July 1775, to a certain number of years service for their freedom, according to the age of the person.
37. The poor make the lowest class or order of persons. Indigent children may be compelled to serve any of the king's subjects without wages, till their age of thirty years. Vagrants and sturdy beggars may be also compelled to serve any manufacturer. And because few persons were willing to receive them into their service, public work-houses are ordained to be built for setting them to work. The poor who cannot work, must be maintained by the parishes in which they were born; and where the place of their nativity is not known, that burden falls upon the parishes where they have had their most common resort, for the three years immediately preceding their being apprehended or their applying for the public charity. Where the contributions collected at the churches to which they belong are not sufficient for their maintenance, they are
to receive badges from the minister and kirk-session, in virtue of which they may ask alms at the dwelling-houses of the inhabitants of the parish.
THE things, or subjects, to which persons have right, are the second object of law.
chii. SECT. I. Of the division of rights, and the several ways by which a right may be acquired.
Property. THE right of enjoying and disposing of a subject at one's pleasure, is called property. Proprietors are restrained by law from using their property emulously to their neighbour's prejudice. Every state or sovereign has a power over private property, called, by some lawyers, dominium eminens, in virtue of which, the proprietor may be compelled to sell his property for an adequate price, where an evident utility on the part of the public demands it.
Things incapable of appropriation.
2. Certain things are by nature itself incapable of appropriation; as the air, the light, the ocean, &c.: none of which can be brought under the power of any one person, though their use be common to all. Others are by law exempted from private commerce, in respect of the uses to which they are destined. Of this last kind are, (1.) Res publicae, as navigable rivers, highways, bridges, &c.: the right of which is vested in the king, chiefly for the benefit of his people, and they are called regalia. (2.) Res universitatis, things which belong in property to a particular corporation or society, and whose use is common to every individual in it, but both property and use are subject to the regulations of the society; as town-houses, corporation-halls, market-places, church-yards, &c. The lands or other revenue belonging to a corporation do not fall under this class, but are jura privati, quoad the corporation.
3. Property may be acquired, either by occupation or accession; and transferred by tradition or prescription: but prescription being also a way of losing property, falls to be explained under a separate title. OCCUPATION, or occupancy, is the appropriating of things which have no owner, by apprehending them, or seizing their possession. This was the original method of acquiring property: and continued, under certain restrictions, the doctrine of the Roman law, Quod nullius est, fit occupantis; but it can have no room in the feudal plan, by which the king is looked on as the original proprietor of all the lands within his dominions.
4. Even in that sort of moveable goods which are presumed to have once had an owner, this rule obtains by the law of Scotland, Quod nullius est, fit domini regis. Thus, the right of treasure hid under ground is not acquired by occupation, but accrues to the king. Thus also, where one finds strayed cattle or other moveables, which have been lost by the former owner, the finder acquires no right in them, but must give public notice thereof; and if, within year and day after such notice, the proprietor does not claim his goods, they fall to the king, sheriff, or other person to whom the king has made a grant of such escheats.
5. In that sort of moveables which never had an owner, as wild-beasts, fowls, fishes, or pearls found on the shore, the original law takes place, that he who first apprehends, becomes proprietor; in so much, that though the right of hunting, fowling, and fishing, be restrained by statute, under certain penalties, yet all game, even what is caught in contravention of the law, becomes the property of the catcher (unless where the confiscation thereof is made part of the penalty), the contravener being obnoxious, however, to the penal enactment of the statutes in consequence of his transgression. It was not for a long time a fixed point whether a person, though possessed of the valued rent by law intitling him to kill game, could hunt upon another person's grounds without consent: but it was lately found by the court of session, and affirmed upon appeal, that he could not; it being repugnant to the idea of property, that any person, however qualified, should have it in his power to traverse and hunt upon another's grounds without consent of the proprietor. Although certain things become the property of the first occupant, yet there are others which fall not under this rule. Thus, whales thrown in or killed on our coasts, belong neither to those who kill them, nor to the proprietor of the grounds on which they are cast; but to the king, providing they are so large as that they cannot be drawn by a wane with six oxen.
6. ACCESSION is that way of acquiring property, by which, in two things which have a connection with or dependence on one another, the property of the principal thing draws after it the property of its accessory. Thus the owner of a cow becomes the owner of the calf; a house belongs to the owner of the ground on which it stands, though built with materials belonging to and at the charge of another; trees taking root in our ground, though planted by another, become ours. Thus also, the insensible addition made to one's ground by what a river washes from other grounds (which is called alluvio), accrues to the matter of the ground which receives the addition: but where it happened that a large piece of ground was disjoined and annexed to another person's by the force of a river or any other accident, and which was by the Romans called avulsio, they considered the owner's right of property still to subsist, § 21. Inst. de rer. divis; and it is probable that, in a similar case, our courts would countenance the distinction. The Romans excepted from this rule the case of paintings drawn on another man's board or canvas, in consideration of the excellency of the art; which exception our practice has for a like reason extended to similar cases.
7. Under accession is comprehended SPECIFICATION; Specificatio by which is meant, a person's making a new species or subject, from materials belonging to another. Where the new species can be again reduced to the matter of which it was made, law considers the former mass as still existing; and therefore, the new species, as an accessory to the former subject, belongs to the proprietor of that subject: but where the thing made cannot be so reduced, as in the case of wine, which cannot be again turned into grapes, there is no place for the filio juris; and therefore the workmanship draws after it the property of the materials. But the person who thus carries the property from the other is bound to indemnify,
Law of Scotland. indemnify him according to the true value; and in case it was done mala fide, he may be made liable in the pretium affectionis or utmost value.
Commix-tion. 8. Though the new species should be produced from the COMMIXTION or confusion of different substances belonging to different proprietors, the same rule holds; but where the mixture is made by the common consent of the owner, such consent makes the whole a common property, according to the shares that each proprietor had formerly in the several subjects. Where things of the same sort are mixed without the consent of the proprietors, which cannot again be separated, e. g. two hogsheds of wine, the whole likewise becomes a common property; but, in the after-division, regard ought to be had to the different quality of the wines: if the things so mixed admit of a separation, e. g. two flocks of sheep, the property continues distinct.
Tradition. 9. Property is carried from one to another by TRANSMISSION; which is the delivery of possession by the proprietor, with an intention to transfer the property to the receiver. Two things are therefore requisite, in order to the transmitting of property in this way: 1. The intention or consent of the former owner to transfer it on some proper title of alienation, as sale, exchange, gift, &c. (2.) The actual delivery in pursuance of that intention. The first is called the causa, the other the modus transferendi dominii: which last is so necessary to the acquiring of property, that he who gets the last right, with the first tradition, is preferred, according to the rule, Traditionibus, non nudis pactis, transferuntur rerum dominia.
10. Tradition is either real, where the ipsa corpora of moveables are put into the hands of the receiver; or symbolic, which is used where the thing is incapable of real delivery, or even when actual delivery is only inconvenient. Where the possession or custody of the subject has been before with him to whom the property is to be transferred, there is no room for tradition.
Possession; natural, and civil, and 11. Possession, which is essential both to the acquisition and enjoyment of property, is defined, the detention of a thing, with a design or animus in the detainer of holding it as his own. It cannot be acquired by the sole act of the mind, without real detention; but, being once acquired, it may be continued solo animo. Possession is either natural, or civil. Natural possession is, when one possesses by himself: thus, we possess lands by cultivating them and reaping their fruits, houses by inhabiting them, moveables by detaining them in our hands. Civil possession is our holding the thing, either by the sole act of the mind, or by the hands of another who holds it in our name: thus, the owner of a thing lent possesses it by the borrower; the proprietor of lands, by his tacksman, trustee, or steward, &c. The same subject cannot be possessed entirely, or in solitum, by two different persons at one and the same time: and therefore possession by an act of the mind ceases, as soon as the natural possession is so taken up by another, that the former possessor is not suffered to re-enter. Yet two persons may, in the judgment of law, possess the same subject, at the same time, on different rights: thus, in the case of a pledge, the creditor possesses it in his own name, in virtue of the right of impignoration; while the proprietor is considered as possessing, in and
through the creditor, in so far as is necessary for supporting his right of property. The same doctrine holds in liferenters, tacksmen, and, generally, in every case where there are rights affecting a subject distinct from the property.
12. A bona fide possessor is he who, though he is not bona fide really proprietor of the subject, yet believes himself proprietor on probable grounds. A mala fide possessor is he who knows, or is presumed to know, that what he possesses is the property of another. A possessor bona fide acquires right, by the Roman law, to the fruits of the subject possessed, that had been reaped and consumed by himself, while he believed the subject his own. By our customs, perception alone, without consumption, secures the possessor: nay, if he has sown the ground, while his bona fides continued, he is intitled to reap the crop, propter curam et culturam. But this doctrine does not reach to civil fruits, e. g. the interest of money, which the bona fide receiver must restore, together with the principal, to the owner.
13. Bona fides necessarily ceaseth by the conscientia rei aliene in the possessor, whether such conscientiousness should proceed from legal interpellation, or private knowledge. Mala fides is sometimes induced by the true owner's bringing his action against the possessor, sometimes not till litiscontestation, and, in cases uncommonly favourable, not till sentence be pronounced against the possessor.
14. The property of moveable subjects is presumed Effects of possession. by the bare act of possession, until the contrary be proved; but possession of an immovable subject, tho' for a century of years together, if there is no seisin, does not create even a presumptive right to it: Nulla susina, nulla terra. Such subject is considered as caducary, and so accrues to the sovereign. Where the property of a subject is contested, the lawful possessor is intitled to continue his possession, till the point of right be discussed; and, if he has lost it by force or stealth, the judge will, upon summary application, immediately restore it to him.
15. Where a possessor has several rights in his person, affecting the subject possessed, the general rule is, that he may ascribe his possession to which of them he pleases; but one cannot ascribe his possession to a title other than that on which it commenced, in prejudice of him from whom his title flowed.
For the better understanding the doctrine of this title, it must be known, that by the law of Scotland, and indeed of most nations of Europe since the introduction of feus, wherever there are two or more in the same degree of consanguinity to one who dies intestate, and who are not all females, such rights belonging to the deceased as are either properly feudal, or have any resemblance to feudal rights, descend wholly to one of them, who is considered as his proper heir; the others, who have the name of next of kin or executors, must be contented with that portion of the estate which is of a more perishable nature. Hence has arisen the division of rights to be explained under this title: the subjects descending to the heir, are styled heritable; and those that fall to the next of kin moveable.
2. All rights of, or affecting lands, under which are com-
comprehended houses, mills, fishings, teinds; and all rights of subjects that are fundo annexa, whether completed by seisin or not, are heritable ex sua natura. On the other hand, every thing that moves itself or can be moved, and in general whatever is not united to land, is moveable: as household-furniture, corns, cattle, cash, arrears of rent and of interest, even though they should be due on a right of annual rent: for though the arrears last mentioned are secured on land, yet being presently payable, they are considered as cash.
3. Debts, (nomina debitorum), when due by bill, promissory note, or account, are moveable. When constituted by bond, they do not all fall under any one head; but are divided into heritable and moveable, by the following rules. All debts constituted by bond bearing an obligation to infect the creditor in any heritable subject in security of the principal sum and annual rent, or annual rent only, are heritable; for they not only carry a yearly profit, but are secured upon land.
4. Bonds merely personal, though bearing a clause of interest, are, by act 1661, declared to be moveable as to succession; i. e. they go, not to the heir, but to the next of kin or executors: but they are heritable with respect to the silk, and to the rights of husband and wife; that is, though, by the general rule, moveable rights fall under the communion of goods consequent upon marriage, and the moveables of denounced persons fall to the crown or silk by single escheat, yet such bonds do neither, but are heritable in both respects.
5. Bonds taken payable to heirs and assignees, excluding executors, are heritable in all respects, from the destination of the creditor. But a bond, which is made payable to heirs, without mention of executors, descends, not to the proper heir in heritage, though heirs are mentioned in the bond, but to the executor; for the word heir, which is a generic term, points out him who is to succeed by law in the right; and the executor, being the heir in mobilibus, is considered as the person to whom such bond is taken payable. But where a bond is taken to heirs-male, or to a series of heirs, one after another, such bond is heritable, because its destination necessarily excludes executors.
6. Subjects originally moveable become heritable, (1.) By the proprietor's destination. Thus, a jewel, or any other moveable subject, may be provided to the heir, from the right competent to every proprietor to settle his property on whom he pleases. (2.) Moveable rights may become heritable, by the supervening of an heritable security: Thus, a sum due by a personal bond becomes heritable, by the creditor's accepting an heritable right for securing it, or by adjudging upon it.
7. Heritable rights do not become moveable by accessory moveable securities; the heritable right being in such case the jus nobilius, which draws the other after it.
8. Certain subjects partake, in different respects, of the nature both of heritable and moveable. Personal bonds are, by the above cited act 1661, moveable in respect of succession; but heritable as to the silk, and the rights of husband and wife. All bonds, whether merely personal, or even heritable, on which no seisin has
followed, may be affected at the suit of creditors, either by adjudication, which is a diligence proper to heritage; or by arrestment, which is peculiar to moveables. Bonds excluding executors, though they descend to the creditor's heir, are payable by the debtor's executors, without relief against the heir; since the debtor's succession cannot be affected by the destination of the creditor.
9. All questions, whether a right be heritable or moveable, must be determined according to the condition of the subject at the time of the ancestor's death. If it was heritable at that period, it must belong to the heir; if moveable, it must fall to the executor, without regard to any alterations that may have affected the subject in the intermediate period between the ancestor's death and the competition.
HERITABLE rights are governed by the feudal law, which owed its origin, or at least its first improvements, to the Longobards; whose kings, upon having penetrated into Italy, the better to preserve their conquests, made grants to their principal commanders of great part of the conquered provinces, to be again subdivided by them among the lower officers, under the conditions of fidelity and military service.
2. The feudal constitutions and usages were first reduced into writing about the year 1150, by two lawyers of Milan, under the title of Consuetudines Feodorum. None of the German emperors appear to have expressly confirmed this collection by their authority; but it is generally agreed, that it had their tacit approbation, and was considered as the customary feudal law of all the countries subject to the empire. No other country has ever acknowledged these books for their law; but each state has formed to itself such a system of feudal rules, as best agreed with the genius of its own constitution. In feudal questions, therefore, we are governed, in the first place, by our own statutes and customs; where these fail us, we have regard to the practice of neighbouring countries, if the genius of their law appears to be the same with ours; and should the question still remain doubtful, we may have recourse to those written books of the feus, as to the original plan on which all feudal systems have proceeded.
3. This military grant got the name, first of beneficium, and afterwards of feudum; and was defined a gratuitous right to the property of lands, made under the conditions of fealty and military service, to be performed to the grantor by the receiver; the radical right of the lands still remaining in the grantor. Under lands, in this definition, are comprehended all rights or subjects so connected with land, that they are deemed a part thereof; as houses, mills, fishings, jurisdictions, patronages, &c. Though feus in their original nature were gratuitous, they soon became the subject of commerce; services of a civil or religious kind were frequently substituted in place of military; and now, of a long time, services of every kind have been entirely dispensed
penfed with in certain feudal tenures. He who makes the grant is called the superior, and he who receives it the vassal. The subject of the grant is commonly called the feu; though that word is at other times, in our law, used to signify one particular tenure. (See Sect. iv. 2.) The interest retained by the superior in the feu is styled dominium directum, or the superiority; and the interest acquired by the vassal, dominium utile, or the property. The word fee is promiscuously applied to both.
4. Allodial goods are opposed to feus; by which are understood goods enjoyed by the owner, independent of a superior. All moveable goods are allodial; lands only are so when they are given without the condition of fealty or homage. By the feudal system, the sovereign, who is the fountain of feudal rights, reserves to himself the superiority of all the lands of which he makes the grant; to that, with us, no lands are allodial, except those of the king's own property, the superiorities which the king reserves in the property-lands of his subjects, and manes and glebes, the right of which is completed by the presbytery's designation, without any feudal grant.
5. Every person who is in the right of an immovable subject, provided he has the free administration of his estate, and is not debarred by statute, or by the nature of his right, may dispose of it to another. Nay, a vassal, though he has only the dominium utile, can subfeud his property to a subvassal by a subaltern right, and thereby raise a new dominium directum in himself, subordinate to that which is in his superior; and so in infinitum. The vassal who thus subfeuds is called the subvassal's immediate superior, and the vassal's superior is the subvassal's mediate superior.
6. All persons who are not disabled by law, may acquire and enjoy feudal rights. Papists cannot purchase a land estate by any voluntary deed. Aliens, who owe allegiance to a foreign prince, cannot hold a feudal right without naturalization: and therefore, where such privilege was intended to be given to favoured nations or persons, statutes of naturalization were necessary, either general or special; or at least, letters of naturalization by the sovereign.
7. Every heritable subject, capable of commerce, may be granted in feu. From this general rule are excepted, 1. The annexed property of the crown, which is not alienable without a previous dissolution in parliament. 2. Tailized lands, which are devised under condition that they shall not be aliened. 3. An estate in hereditate jacente cannot be effectually aliened by the heir-apparent (i. e. not entered); but such alienation becomes effectual upon his entry, the supervening right accruing in that case to the purchaser; which is a rule applicable to the alienation of all subjects not belonging to the venter at the time of the sale.
8. The feudal right, or, as it is called, investiture, is constituted by charter and feisin. By the charter, we understand that writing which contains the grant of the feudal subject to the vassal, whether it be executed in the proper form of a charter, or of a disposition. Charters by subject superiors are granted, either, 1. A me de superiore meo, when they are to be holden, not of the granter himself, but of his superior. This sort is called a public holding, because vassals were
in ancient times publicly received in the superior's court before the paries curie or co-vassals. Or, 2. De me, where the lands are to be holden of the granter. These were called sometimes base rights, from base, lower; and sometimes private, because, before the establishment of our records, they were easily concealed from third parties; the nature of all which will be more fully explained, Sect. vii. An original charter is that by which the fee is first granted: A charter by progress is a renewed disposition of that fee to the heir or assignee of the vassal. All doubtful clauses in charters by progress ought to be construed agreeably to the original grant; and all clauses in the original charter are understood to be implied in the charters by progress, if there be no express alteration.
9. The first clause in an original charter, which follows immediately after the name and designation of the granter, is the narrative or recital, which expresses the causes inductive of the grant. If the grant be made for a valuable consideration, it is said to be onerous; if for love and favour, gratuitous. In the dispositive clause of a charter, the subjects made over are described either by special boundaries or march-stones, (which is called a bounding charter), or by such other characters as may sufficiently distinguish them. A charter regularly carries right to no subjects but what are contained in this clause, though they should be mentioned in some other clause of the charter. It has been however found, that a right to salmon-fishing was carried by a clause cum piscariis in the tenendas of a charter, the same having been followed with possession.
10. The clause of tenendas (from its first words tenendas praedictas terras) expresses the particular tenure by which the lands are to be holden. The clause of reddendo (from the words reddendo inde annuatim) specifies the particular duty or service which the vassal is to pay or perform to the superior.
11. The clause of warrandice is that by which the grantee obliges himself that the right conveyed shall be effectual to the receiver. Warrandice is either personal or real. Personal warrandice, where the grantee is only bound personally, is either, 1. Simple, that he shall grant no deed in prejudice of the right; and this sort, which is confined to future deeds, is implied even in donations. 2. Warrandice from fact and deed, by which the grantee warrants that the right neither has been, nor shall be, hurt by any fact of his. Or, 3. Absolute warrandice contra omnes mortales, whereby the right is warranted against all legal defects in it which may carry it off from the receiver either wholly or in part. Where a sale of lands proceeds upon an onerous cause, the grantee is liable in absolute warrandice, though no warrandice be expressed; but in assignments to debts or decrees, no higher warrandice than from fact and deed is implied.
12. Gratuitous grants by the crown imply no warrandice; and though warrandice should be expressed, the clause is ineffectual, from a presumption that it has crept in by the negligence of the crown's officers. But where the crown makes a grant, not jure corona, but for an adequate price, the sovereign is in the same case with his subjects.
13. Absolute warrandice, in case of eviction, affords
an action to the grantee against the grantor, for making up to him all that he shall have suffered through the defect of the right; and not simply for his indemnification, by the grantor's repayment of the price to him. But as warrandice is penal, and consequently stricti juris, it is not easily presumed, nor is it incurred from every light servitude that may affect the subject; far less does it extend to burdens which may affect the subject posterior to the grant, nor to those imposed by public statute, whether before or after, unless specially warranted against.
14. Real warrandice is either, 1. Express, whereby, in security of the lands principally conveyed, other lands, called warrandice-lands, are also made over, to which the receiver may have recourse in case the principal lands be evicted. Or, 2. Tacit, which is constituted by the exchange or excambion of one piece of ground with another; for, if the lands exchanged are carried off from either of the parties, the law itself, without any action, gives that party immediate recourse upon his own first lands, given in exchange for the lands evicted.
15. The charter concludes with a precept of seisin, which is the command of the superior grantor of the right to his bailie, for giving seisin or possession to the vassal, or his attorney, by delivering to him the proper symbols. Any person, whose name may be inserted in the blank left in the precept for that purpose, can execute the precept as bailie; and whoever has the precept of seisin in his hands, is presumed to have a power of attorney from the vassal for receiving possession in his name.
16. A seisin is the instrument or attestation of a notary, that possession was actually given by the superior or his bailie, to the vassal or his attorney; which is considered as so necessary a solemnity, as not to be suppliable, either by a proof of natural possession, or even of the special fact that the vassal was duly entered to the possession by the superior's bailie.
17. The symbols by which the delivery of possession is expressed, are, for lands, earth, and stone; for rights of annual rent payable forth of land, it is also earth and stone with the addition of a penny money; for parsonage teinds, a sheaf of corn; for jurisdictions, the book of the court; for patronages, a psalm-book, and the keys of the church; for fishings, net and coble; for mills, clap and happer, &c. The seisin must be taken upon the ground of the lands, except where there is a special dispensation in the charter from the crown.
18. All seisins must be registered within 60 days after their date, either in the general register of seisins at Edinburgh, or in the register of the particular shire appointed by the act 1617; which, it must be observed, is not, in every case, the shire within which the lands lie. Burgage seisins are ordained to be registered in the books of the borough.
19. Unregistered seisins are ineffectual against third parties, but they are valid against the grantors and their heirs. Seisins regularly recorded, are preferable, not according to their own dates, but the dates of their registration.
20. Seisin necessarily supposes a superior by whom it is given; the right therefore which the sovereign, who acknowledges no superior, has over the whole
lands of Scotland, is constituted jure corone without seisin. In several parcels of land that lie contiguous to one another, one seisin serves for all, unless the right of the several parcels be either holden of different superiors, or derived from different authors, or enjoyed by different tenures under the same superior. In discontinuous lands, a separate seisin must be taken on every parcel, unless the sovereign has united them into one tenantry by a charter of union; in which case, if there is no special place expressed, a seisin taken on any part of the united lands will serve for the whole, even though they be situated in different shires. The only effect of union is, to give the discontinuous lands the same quality as if they had been contiguous or naturally united; union, therefore, does not take off the necessity of separate seisins, in lands holden by different tenures, or the rights of which flow from different superiors, these being incapable of natural union.
21. The privilege of barony carries a higher right than union does, and consequently includes union in it as the lesser degree. This right of barony can neither be given, nor transmitted, unless by the crown; but the quality of simple union, being once conferred on lands by the sovereign, may be communicated by the vassal to a subvassal. Though part of the lands united or erected into a barony be sold by the vassal to be holden a me, the whole union is not thereby dissolved: what remains unfold retains the quality.
22. A charter, not perfected by seisin, is a right merely personal, which does not transfer the property (see No clxxxiii. 1.); and a seisin of itself bears no faith without its warrant: It is the charter and seisin joined together that constitutes the feudal right, and secures the receiver against the effect of all posterior seisins, even though the charters on which they proceed should be prior to his.
23. No quality which is designed as a lien or real burden on a feudal right, can be effectual against singular successors, if it be not inserted in the investiture. If the creditors in the burden are not particularly mentioned, the burden is not real; for no perpetual unknown incumbrance can be created upon lands. Where the right itself is granted with the burden of the sum therein mentioned, or where it is declared void if the sum be not paid against a day certain, the burden is real; but where the receiver is simply obliged by his acceptance to make payment, the clause is effectual only against him and his heirs.
FEUDAL subjects are chiefly distinguished by their different manners of holding, which were either ward, blanch, feu, or burgage. Ward holding, (which is now abolished by 20 Geo. II. c. 50.) was that which was granted for military service. Its proper reddendo was, services, or services used and wont; by which last was meant the performance of service whenever the superior's occasions required it. As all feudal rights were originally held by this tenure, ward-holding was in dubio presumed. Hence, though the reddendo had contained some special service or yearly duty, the holding was presumed ward, if another holding was not particularly expressed.
2. Feu-holding is that whereby the vassal is obliged
| L | A | W. | |
|---|---|---|---|
| Law of Scotland. |
to pay to the superior a yearly rent in money or grain, and sometimes also in services proper to a farm, as ploughing, reaping, carriages for the superior's use, &c. nomina feudi firma. This kind of tenure was introduced for the encouragement of agriculture, the improvement of which was considerably obstructed by the vassal's obligation to military service. It appears to have been a tenure known in Scotland as far back as leges burgorum. |
the dominium utile, or property, is conveyed to his vassal. The superiority carries a right to the services and annual duties contained in the reddendo of the vassal's charter. The duty payable by the vassal is a debitum fundi, i. e. it is recoverable, not only by a personal action against himself, but by a real action against the lands. |
Law of Scotland. |
| Blanch-holding. |
3. Blanch-holding is that whereby the vassal is to pay to the superior an elusory yearly duty, as a penny money, a rose, a pair of gilt spurs, &c. merely in acknowledgment of the superiority, nomina alba firma. This duty, where it is a thing of yearly growth, if it be not demanded within the year, cannot be exacted thereafter; and where the words si petatur tantum are subjoined to the reddendo, they imply a release to the vassal, whatever the quality of the duty may be, if it is not asked within the year. |
2. Besides the constant fixed rights of superiority, there are others, which, because they depend upon uncertain events, are called casualties. |
Casualties. |
| Burgage-holding. |
4. Burgage-holding is that, by which boroughs-royal hold of the sovereign the lands which are contained in their charters of erection. This, in the opinion of Craig, does not constitute a separate tenure, but is a species of ward-holding; with this specialty, that the vassal is not a private person, but a community: and indeed, watching and warding, which is the usual service contained in the reddendo of such charters, might be properly enough said, some centuries ago, to have been of the military kind. As the royal borough is the king's vassal, all burgage holders hold immediately of the crown: the magistrates, therefore, when they receive the resignations of the particular burghesses, and give seisin to them, act, not as superiors, but as the king's bailies specially authorized thereto. |
3. The casualties proper to a ward-holding, while that tenure subsisted, were ward, recognition, and marriage, which it is now unnecessary to explain, as by the late statutes 20 and 25 Geo. II. for abolishing ward-holdings, the tenure of the lands holden ward of the crown or prince is turned into blanch, for payment of one penny Scots yearly, si petatur tantum; and the tenure of those holden of subjects into feu, for payment of such yearly feu-duty in money, victual, or cattle, in place of all services, as should be fixed by the court of session. And accordingly that court, by act of sederunt Feb. 8. 1749, laid down rules for ascertaining the extent of these feu-duties. A full history of their casualties, and of the effects consequent upon their falling to the superior, will be found in Erskine's large Institute, B. 2. T. 5. § 5. et sequen; to which the reader is referred. |
Ward-holding. |
| Mortification. |
5. Feudal subjects, granted to churches, monasteries, or other societies for religious or charitable uses, are said to be mortified, or granted ad manum mortuam; either because all casualties must necessarily be lost to the superior, where the vassal is a corporation, which never dies; or because the property of these subjects is granted to a dead hand, which cannot transfer it to another. In lands mortified in times of Popery to the church, whether granted to prelates for the behoof of the church, or in puram elemosynam; the only services prestable by the vassals were prayers, and singing of masses for the souls of the deceased, which approaches nearer to blanch-holding than ward. The purposes of such grants having been, upon the reformation, declared superstitious, the lands mortified were annexed to the crown: but mortifications to universities, hospitals, &c. were not affected by that annexation; and lands may, at this day, be mortified to any lawful purpose, either by blanch or by feu holding. But as the superior must lose all the casualties of superiority in the case of mortifications to churches, universities, &c. which being considered as a corporation, never dies; therefore lands cannot be mortified without the superior's consent. Craig, lib. 1. deg. 11, § 21. |
4. The only casualty, or rather forfeiture, proper to feu-holding, is the loss or tinsel of the feu-right, by the neglect of payment of the feu-duty for two full years. Yet where there is no conventional irritancy in the feu-right, the vassal is allowed to purge the legal irritancy at the bar; that is, he may prevent the forfeiture, by making payment before sentence: but where the legal irritancy is fortified by a conventional, he is not allowed to purge, unless where he can give a good reason for the delay of payment. |
Feu-holding. |
| Fixedrights of superiority. |
6. For understanding the nature of retoured duties, it must be known, that there was anciently a general valuation of all the lands in Scotland, designed both for regulating the proportion of public subsidies, and for ascertaining the quantity of non-entry and relief-duties payable to the superior; which appears, by a contract between K. R. Bruce and his subjects anno 1327, preserved in the library of the Faculty of Advocates, to have been settled at least as far back as the reign of Alexander III. This valuation became in the |
5. The casualties common to all holdings are, non-entry, relief, liferent, escheat, disclaimation, and presure. NON-ENTRY is that casualty which arises to the superior out of the rents of the feudal subject, through the heir's neglecting to renew the investiture after his ancestor's death. The superior is intitled to this casualty, not only where the heir has not obtained himself in seisin, but where his retour or investiture is set aside upon nullities. The heir, from the death of the ancestor, till he be cited by the superior in a process of general declarator of non-entry, loses only the retoured duties of his lands, (see next parag.); and he forfeited these, though his delay should not argue any contempt of the superior, because the casualty is considered to fall, as a condition implied in the feudal right, and not as a penalty of transgression: but reasonable excuses are now admitted to liberate even from the retoured duties before citation. |
Non-entry. |
| clxvi. |
SECT. V. Of the casualties due to the superior. |
Retoured duties. |
|
|
THE right of the superior continues unimpaired, notwithstanding the feudal grant, unless in so far as |
course of time, by the improvement of agriculture, and perhaps also by the heightening of the nominal value of our money, from the reign of Robert I. downwards to that of James III. much too low a standard for the superior's casualties: wherefore, in all services of heirs, the inquest came at last to take proof likewise of the present value of the lands contained in the brief (quantum nunc valent), in order to fix these casualties. The first was called the old, and the other the new, extent. Though both extents were ordained to be specified in all retours made to the chancery upon briefs of inquest; yet by the appellation of retoured duties in a question concerning casualties, the new extent is always understood. The old extent continued the rule for levying public subsidies, till a tax was imposed by new proportions, by several acts made during the usurpation. By two acts of Cromwell's parliament, held at Westminster in 1656, imposing taxations on Scotland, the rates laid upon the several counties are precisely fixed. The subsidy granted by the act of convention 1667 was levied on the several counties, nearly in the same proportions that were fixed by the usurper in 1656; and the sums to which each county was subjected were subdivided among the individual landholders in that county, according to the valuations already settled, or that should be settled by the commissioners appointed to carry that act into execution. The rent fixed by these valuations is commonly called the valued rent; according to which the land-tax, and most of the other public burdens, have been levied since that time.
7. In feu-holdings, the feu-duty is retoured as the rent, because the feu-duty is presumed to be, and truly was at first, the rent. The superior therefore of a feu-holding gets no non-entry, before citation in the general declarator; for he would have been intitled to the yearly feu-duty, though the fee had been full, i. e. though there had been a vassal in feft in the lands. The superior of teinds gets the fifth part of the retoured duty as non-entry, because the law considers teinds to be worth a fifth part of the rent. In rights of annualrent which are holden of the grantor, the annualrenter becomes his debtor's vassal; and the annualrent contained in the right is retoured to the blanch or other duty contained in the right before declarator.
8. It is because the retoured duty is the presumed rent, that the non-entry is governed by it. If therefore no retour of the lands in non-entry can be produced, nor any evidence brought of the retoured duty, the superior is intitled to the real, or at least to the valued, rent, even before citation. In lands formerly holden ward of the King, the heir, in place of the retoured duties, is subjected only to the annual payment of one per cent. of the valued rent.
9. The heir, after he is cited by the superior in the action of general declarator, is subjected to the full rents till his entry, because his neglect is less excusable after citation. The decree of declarator, proceeding on this action, intitles the superior to the possession, and gives him right to the rents downward from the citation. As this sort of non-entry is properly penal, our law has always restricted it to the retoured duties, if the heir had a probable excuse for not entering.
10. Non-entry does not obtain in burgage-holdings, because the incorporation of inhabitants holds the whole incorporated subjects of the King; and there
can be no non-entry due in lands granted to communities, because there the vassal never dies. This covers the right of particulars from non-entry: for if non-entry be excluded with regard to the whole, it cannot obtain with regard to any part. It is also excluded, as to a third of the lands, by the terce, during the widow's life; and as to the whole of them, by the courtesy during the life of the husband. But it is not excluded by a precept of feisin granted to the heir till feisin be taken thereupon.
11. RELIEF is that casualty which intitles the superior to an acknowledgment or consideration from the heir for receiving him as vassal. It is called relief, because, by the entry of the heir, his fee is relieved out of the hands of the superior. It is not due in feu-holdings flowing from subjects, unless where it is expressed in the charter by a special clause for doubling the feuduty at the entry of an heir; but, in feu-rights holden of the crown, it is due, though there should be no such clause in the charter. The superior can recover this casualty, either by a poinding of the ground, as a debitum fundi, or by a personal action against the heir. In blanch and feu-holdings, where this casualty is expressly stipulated, a year's blanch or feu duty is due in name of relief, beside the current year's duty payable in name of blanch or feu farm.
12. ESCHEAT (from esebeoir, to happen or fall) is that forfeiture which falls through a person's being denounced rebel. It is either single or liferent. Single escheat, though it does not accrue to the superior, must be explained in this place, because of its coincidence with liferent.
13. After a debt is constituted, either by a formal decree, or by registration of the ground of debt, which to the special effect of execution, is in law accounted a decree; the creditor may obtain letters of horning, issuing from the signet, commanding messengers to charge the debtor to pay or perform his obligation, within a day certain. Where horning proceeds on a formal decree of the session, the time indulged by law to the debtor is fifteen days; if upon a decree of the commission of teinds or admiral, it is ten; and upon the decrees of all inferior judges, fifteen days. Where it proceeds on a registered obligation, which specifies the number of days, that number must be the rule; and, if no precise number be mentioned, the charge must be given in fifteen days, which is the term of law, unless where special statute interposes; as in bills, upon which the debtor may be charged on six days.
14. The messenger must execute these letters (and indeed all summonses) against the debtor, either personally or at his dwelling-house; and, if he get not access to the house, he must strike six knocks at the gate, and thereafter affix to it a copy of his execution. If payment be not made within the days mentioned in the horning, the messenger, after proclaiming three oyes at the market-cross of the head borough of the debtor's domicile, and reading the letters there, blows three blasts with a horn, by which the debtor is understood to be proclaimed rebel to the king for contempt of his authority; after which, he must affix a copy of the execution to the market-cross: This is called the publication of the diligence, or a denunciation at the horn. Where the debtor is not in Scotland, he must be charged on sixty days, and denounced at the market-
market-crofs of Edinburgh, and pier and shore of Leith.
15. Denunciation, if registered within 15 days, either in the sheriff's books, or in the general register, drew after it the rebel's single escheat, i. e. the forfeiture of his moveables to the crown. Persons denounced rebels have not a persona standi in judicio; they can neither sue nor defend in any action. But this incapacity being unfavourable, is personal to the rebel, and cannot be pleaded against his assignee.
16. Persons cited to the court of judicary may be also denounced rebels, either for appearing there with too great a number of attendants: or, if they fail to appear, they are declared fugitives from the law. Single escheat falls, without denunciation, upon sentence of death pronounced in any criminal trial; and, by special statute, upon one's being convicted of certain crimes, though not capital; as perjury, bigamy, deforcement, breach of arrestment, and usury. By the late act abolishing ward-holdings, the casualties both of single and liferent escheat are discharged, when proceeding upon denunciation for civil debts; but they still continue, when they arise from criminal causes. All moveables belonging to the rebel at the time of his rebellion, (whether proceeding upon denunciation, or sentence in a criminal trial), and all that shall be afterwards acquired by him until relaxation, fall under single escheat. Bonds bearing interest, because they continue heritable quoad fiscum, fall not under it, nor such fruits of heritable subjects as became due after the term next ensuing the rebellion, these being reserved for the liferent escheat.
17. The king never retains the right of escheat to himself, but makes it over to a donatory, whose gift is not perfected, till, upon an action of general declarator, it be declared that the rebel's escheat has fallen to the crown by his denunciation, and that the right of it is now transferred to the pursuer by the gift in his favour. Every creditor therefore of the rebel, whose debt was contracted before rebellion, and who has used diligence before declarator, is preferable to the donatory. But the escheat cannot be affected by any debt contracted, nor by any voluntary deed of the rebel after rebellion.
18. The rebel, if he either pays the debt charged for, or suspends the diligence, may procure letters of relaxation from the horn, which, if published in the same place, and registered 15 days thereafter in the same register with the denunciation, have the effect to restore him to his former state; but they have no retrospect as to the moveables already fallen under escheat, without a special clause for that purpose.
19. The rebel, if he continues unrelaxed for year and day after rebellion, is construed to be civilly dead: and therefore, where he holds any feudal right, his superiors, as being without a vassal, are intitled, each of them, to the rents of such of the lands belonging to the rebel as hold of himself, during all the days of the rebel's natural life, by the casualty of LIFERENT ES- CHEAT; except where the denunciation proceeds upon treason or proper rebellion, in which case the liferent falls to the king.
20. It is that estate only, to which the rebel has a proper right of liferent in his own person, that falls under his liferent escheat.
21. Though neither the superior nor his donatory can enter into possession in consequence of this casualty, till decree of declarator; yet that decree, being truly declaratory, has a retrospect, and does not so properly confer a new right, as declare the right formerly constituted to the superior, by the civil death of his vassal. Hence, all charters or heritable bonds, though granted prior to the rebellion, and all adjudications, though led upon debts contracted before that period, are ineffectual against the liferent escheat, unless seisin be taken thereon within year and day after the granter's rebellion.
22. Here, as in single escheat, no debt contracted after rebellion can hurt the donatory, nor any voluntary right granted after that period, though in security or satisfaction of prior debts.
23. DISCLAIMATION is that casualty whereby a vassal forfeits his whole feu to his superior, if he disowns or disclaims him, without ground, as to any part of it. PURPRESTURE draws likewise a forfeiture of the whole Purpresture after it; and is incurred by the vassal's encroaching upon any part of his superior's property, or attempting by building, inclosing, or otherwise, to make it his own. In both these feudal delinquencies, the least colour of excuse saves the vassal.
24. All grants from the crown, whether charters, gifts of casualties, or others, proceed on signatures which pass the signet. When the king resided in Scotland, all signatures were supercribed by him; but, on the accession of James VI. to the crown of England, a cachet or seal was made, having the king's name engraved on it, in pursuance of an act of the privy-council, April 4. 1603. with which all signatures were to be afterwards sealed, that the lords of exchequer were empowered to pass; and these powers are transferred to the court of exchequer, which was established in Scotland after the union of the two kingdoms in 1707. Grants of higher consequence, as remissions of crimes, gifts proceeding upon forfeiture, and charters of novodamus, must have the king's sign manual for their warrant.
25. If lands holding of the crown were to be conveyed, the charter passed, before the union of the kingdoms in 1707, by the great seal of Scotland; and now by a seal substitute in place thereof. Grants of church-dignities, during episcopacy, passed also by the great seal; and the commissions to all the principal officers of the crown, as Justice-Clerk, King's Advocate, Solicitor, &c. do so at this day. All rights which subjects may transmit by simple assignation, the king transmits by the privy-seal: as gifts of moveables, or of casualties that require no seisin. The quarter seal, otherwise called the testimonial of the great seal, is appended to gifts of tutory, commissions of briefs issuing from the chancery, and letters of presentation to lands holding of a subject, proceeding upon forfeiture, bastardy, or ultimus heres.
26. Seals are to royal grants what subscription is to rights derived from subjects, and give them authority; they serve also as a check to gifts procured (subreptione vel obreptione) by concealing the truth, or expressing a falsehood; for, where this appears, the gift may be stopped before passing the seals, though the signature should have been signed by the king. All rights passing under the great or privy seal must be registered in
in the registers of the great or privy seal respectively, before appending the seal.
clxvii. SECT. VI. Of the right which the vassal acquires by getting the feu.
UNDER the dominium utile which the vassal acquires by the feudal right, is comprehended the property of whatever is considered as part of the lands, whether of houses, woods, inclosures, &c. above ground; or of coal, limestone, minerals, &c. under ground. Mills have, by the generality of our lawyers, been deemed a separate tenement, and so not carried by a charter or disposition, without either a special clause conveying mills, or the erection of the lands into a barony. Yet it is certain, that, if a proprietor builds a mill on his own lands, it will be carried by his entail, or by a retour, without mentioning it, although the lands are not erected into a barony. If the lands disposed be attrited, or thirled to another mill, the purchaser is not allowed to build a new corn-mill on his property, even though he should offer security that it shall not hurt the thirle; which is introduced for preventing daily temptations to fraud.
2. Proprietors are prohibited to hold dove-cotes, unless their yearly rent, lying within two miles thereof, extend to ten chalders of victual. A purchaser of lands, with a dove-cote, is not obliged to pull it down, though he should not be qualified to build one; but, if it becomes ruinous, he cannot rebuild it. The right of brewing, though not expressed in the grant, is implied in the nature of property; as are also the rights of fishing, fowling, and hunting, in so far as they are not restrained by statute.
3. There are certain rights naturally consequent on property, which are deemed to be preserved by the crown as regalia; unless they be specially conveyed. Gold and silver mines are of this sort; the first universally; and the other, where three half-pennies of silver can be extracted from the pound of lead, by act 1424, (three half-pennies at that time was equal to about two shillings five pence of our present Scots money). These were by our ancient law annexed to the crown; but they are now dissolved from it; and every proprietor is intitled to a grant of the mines within his own lands, with the burden of delivering to the crown a tenth of what shall be brought up.
4. Salmon-fishing is likewise a right understood to be reserved by the crown, if it be not expressly granted; but 40 years possession thereof, where the lands are either erected into a barony, or granted with the general clause of fishings, establishes the full right of the salmon-fishing in the vassal. A charter of lands, within which any of the king's forests lie, does not carry the property of such forest to the vassal.
5. All the subjects which were by the Roman law accounted res publica, as rivers, highways, ports, &c. are, since the introduction of feus, held to be inter regalia, or in patrimonio principis; and hence encroachment upon a highway is said to infer purpresture. No person has the right of a free port without a special grant, which implies a power in the grantee to levy anchorage and shore dues, and an obligation upon him to uphold the port in good condition. In this class of things, our forefathers reckoned fortalities, or small
places of strength, originally built for the defence of the country, either against foreign invasions or civil commotions; but these now pass with the lands in every charter.
6. The vassal acquires right by his grant, not only to the lands specially contained in the charter, but to those that have been possessed 40 years as pertinent thereof. But, 1. If the lands in the grant are marked out by special limits, the vassal is circumscribed by the tenor of his own right, which excludes every subject without these limits from being pertinent of the lands. 2. A right possessed under an express infestation is preferable, ceteris paribus, to one possessed only as pertinent. 3. Where neither party is infest per expressum, the mutual promiscuous possession by both, of a subject as pertinent, resolves into a commonty of the subject possessed: but if one of the parties has exercised all the acts of property of which the subject was capable, while the possession of the other was confined to pasturage only, or to casting seal and divot, the first is to be deemed sole proprietor, and the other to have merely a right of servitude.
7. As barony is a nomen universitatis, and unites the several parts contained in it into one individual of barony right, the general conveyance of a barony carries with it all the different tenements of which it consists, tho' they should not be specially enumerated (and this holds, even without erection into a barony, in lands that have been united under a special name). Hence, likewise, the possession by the vassal of the smallest part of the barony-lands preserves to him the right of the whole.
8. The vassal is intitled, in consequence of his property, to levy the rents of his own lands, and to recover them from his tenants by an action for rent before his own court; and from all other possessors and intromitters, by an action of mails and duties before the sheriff. He can also remove from his lands, tenants who have no leases; and he can grant tacks or leases to others. A tack is a contract of location, whereby lease the use of land, or any other immovable subject, is set to the lessee or tackman for a certain yearly rent, either in money, the fruits of the ground, or services. It ought to be reduced into writing, as it is a right concerning lands: tacks, therefore, that are given verbally, to endure for a term of years, are good against neither party for more than one year. An obligation to grant a tack is as effectual against the grantor as a formal tack. A liferenter, having a temporary property in the fruits, may grant tacks to endure for the term of his own liferent.
9. The tackman's right is limited to the fruits which spring up annually from the subject set, either naturally, or by his own industry; he is not therefore intitled to any of the growing timber above ground, and far less to the minerals, coal, clay, &c. under ground, the use of which consumes the substance. Tacks are, like other contracts, personal rights in their own nature; and consequently ineffectual against singular successors in the lands; but, for the encouragement of agriculture, they were, by act 1449, declared effectual to the tackman for the full time of their endurance, into whose hands soever the lands might come.
10. To give a written tack the benefit of this statute,
it must mention the special tack-duty payable to the proprietor, which though small, if it be not elusory, secures the tackman; and it must be followed by possession, which supplies the want of a feisin. If a tack does not express the term of entry, the entry will commence at the next term after its date, agreeable to the rule, Quod pure debetur, presenti die debetur. If it does not mention the ish, i. e. the term at which it is to determine, it is good for one year only; but, if the intention of parties to continue it for more than one year, should appear from any clause in the tack (e. g. if the tackman should be bound to certain annual prestations), it is sustained for two years as the minimum. Tacks granted to perpetuity, or with an indefinite ish, have not the benefit of the statute. Tacks of houses within borough do not fall within this act, it being customary to let these from year to year.
11 Tacks necessarily imply a delectus persone, a choice by the fetter of a proper person for his tenant. Hence the conveyance of a tack which is not granted to assignees, is ineffectual without the landlord's consent. A right of tack, though it be heritable, falls under the jus mariti, because it cannot be separated from the labouring cattle and implements of tillage, which are moveable subjects. A tack, therefore, granted to a single woman, without the liberty of assigning, falls by her marriage; because the marriage, which is a legal conveyance thereof to the husband, cannot be annulled. This implied exclusion of assignees is, however, limited to voluntary, and does not extend to necessary, assignments; as an adjudication of a tack by the tackman's creditor: but a tack, expressly excluding assignees, cannot be carried even by adjudication. It was not a fixed point for a long time, whether a tenant could sublet without consent of the landlord; but the court of session, in a case which occurred a few years ago, denied the power of subletting in the tenant. Different tacks, because they import a higher degree of right in the tackman than tacks for a definite term, may be assigned, unless assignees be specially excluded.
12. If neither the fetter nor tackman shall properly discover their intention to have the tack dissolved at the term fixed for its expiration, they are underlied, or presumed, to have entered into a new tack upon the same terms with the former, which is called tacit relocation; and continues till the landlord warns the tenant to remove, or the tenant renounces his tack to the landlord: this obtains also in the case of moveable tenants, who possess from year to year without written tacks. In judicial tacks, however, by the court of session, tacit relocation neither does nor can take place; for cautioners being interposed to these, they are loosed at the end of the tack: and therefore, where judicial tacksmen possess after expiry of their right, they are accountable as factors.
13. In tacks of land, the fetter is commonly bound to put all the houses and office-houses, necessary for the farm, in good condition at the tenant's entry; and the tenant must keep them and leave them so at his removal. But, in tacks of houses, the fetter must not only deliver to the tenant the subject set, in tenable repair at his entry, but uphold it in that repair during the whole years of the tack, unless it is otherwise covenanted betwixt the parties.
14. If the inclemency of the weather, inundation, or calamity of war, should have brought upon the crop an extraordinary damage (plus quam tolerabile), the landlord had, by the Roman law, no claim for any part of the tack-duty: if the damage was more moderate, he might exact the full rent. It is nowhere defined, what degree of sterility or devastation makes a loss plus quam tolerabile; but the general rule of the Roman law seems to be made ours. Tenants are not obliged to pay any public burdens to which they are not expressly bound by their tack, except mill-services.
15. Tacks may be evacuated during their currency, Defoliation of tacks.
(1.) In the same manner as feu-rights, by the tackman's running in arrear of his tack-duty for two years together. This irritancy may be prevented by the tenant's making payment at the bar before sentence. (2.) Where the tenant either runs in arrear of one year's rent, or leaves his farm uncultivated at the usual season; in which case he may, by act of sederunt 1756, be ordained to give security for the arrears, and for the rent of the five following crops, if the tack shall subsist so long; otherwise, to remove, as if the tack were at an end. (3.) Tacks may be evacuated at any time by the mutual consent of parties.
16. The landlord, when he intends to remove a tenant whose tack is expiring, or who possesses without a tack, must, upon a precept signed by himself, warn the tenant forty days preceding the term of Whit-sunday, at or immediately preceding the ish, personally, or at his dwelling-house, to remove at that term, with his family and effects. This precept must be also executed on the ground of the lands, and thereafter read in the parish-church where the lands lie, after the morning service, and affixed to the most patent door thereof. Whit-sunday, though it be a moveable feast, is, in questions of removing, fixed to the 15th of May. In warnings from tenements within borough, it is sufficient that the tenant be warned forty days before the ish of the tack, whether it be Whit-sunday or Martinmas; and in these the ceremony of chalking the door is sustained as warning, when proceeding upon a verbal order from the proprietor.
17. This process of warning was precisely necessary for founding an action of removing against tenants, till the act of sederunt 1756, which leaves it in the option of the proprietor, either to use the former method, or to bring his action of removing before the judge-ordinary; which, if it be called 40 days before the said term of Whit-sunday, shall be held as equal to a warning. Where the tenant is bound, by an express clause of his tack, to remove at the ish without warning, such obligation is, by the said act, declared to be a sufficient warrant for letters of horning, upon which, if the landlord charge his tenant forty days before the said Whit-sunday, the judge is authorised to eject him within six days after the term of removing expressed in the tack.
18. Actions of removing might, even before this act of sederunt, have been pursued without any previous warning (1.) Against vicious possessors, i. e. persons who had seized the possession by force, or who, without removing, any legal title, had intruded into it, after the last possessor had given it up. (2.) Against possessors who had a naked tolerance. (3.) Against tenants who had run
in arrear of rent, during the currency of their tacks. (4.) Against such as had sold their lands, and yet continued to possess after the term of the purchaser's entry. Upon the same ground, warning was not required, in removing against possessors of liferented lands, after the death of the liferenter who died in the natural possession: but if he possessed by tenants, these tenants could not be disturbed in their possessions till the next Whit-sunday, that they might have time to look out for other farms; but they might be compelled to remove at that term, by an action of removing, without warning.
19. A landlord's title in a removing, let it be ever so lame, cannot be brought under question by a tenant whose tack flows immediately from him; but, if he is to insist against tenants not his own, his right must be perfected by infestment, unless it be such as requires no infestment; as terce, &c.
20. The defender, in a removing, must (by act 1555), before offering any defence which is not instantly verified, give security to pay to the fetter the violent profits, if they should be awarded against him. These are so called, because the law considers the tenant's possession after the warning as violent. They are estimated, in tenements within borough, to double the rent; and in lands, to the highest profits the pursuer could have made of them, by possessing them either by a tenant or by himself.
21. If the action of removing shall be passed from, or if the landlord shall, after using warning, accept of rent from the tenant, for any term subsequent to that of the removal, he is presumed to have changed his mind, and tacit relocation takes place. All actions of removing against the principal or original tackeman, and decrees thereupon, if the order be used, which is set forth supra (17.), are, by the act of sederunt 1756, declared to be effectual against the assignees to the tack or subtenants.
22. The landlord has, in security of his tack-duty, over and above the tenant's personal obligation, a tacit pledge or hypothec, not only on the fruits, but on the cattle pasturing on the ground. The corn, and other fruits, are hypothecated for the rent of that year whereof they are the crop; for which they remain affected, though the landlord should not use his right for years together. In virtue of this hypothec, the landlord is intitled to a preference over any creditor, though he has actually used a poinding; except in the special case, that the poinding is executed after the term of payment, when the landlord can appropriate the crop for his payment, the poinder in such case being obliged to leave as much on the ground as to satisfy the landlord's hypothec: and it has been lately found, that this right of the landlord is preferable even to a debt due to the crown, for which a writ of extent had been issued: but the case here alluded to is presently under appeal.
23. The whole cattle on the ground, considered as a quantity, are hypothecated for a year's rent, one after another successively. The landlord may apply this hypothec for payment of the past year's rent, at any time within three months from the last conventional term of payment, after which it ceases for that year. As the tenant may increase the subject of this hypothec, by purchasing oxen, sheep, &c. so he can impair it, by selling part of his stock; but if the landlord suspects the tenant's management, he may, by sequestration or poinding, make his right, which was before general upon the whole stock, special upon every individual. A superior has also a hypothec for his feu-duty, of the same kind with that just explained.
24. In tacks of houses, breweries, shops, and other tenements, which have no natural fruits, the furniture and other goods brought into the subject set are hypothecated to the landlord for one year's rent. But the tenant may by sale impair this hypothec, as he might that of cattle in rural tenements; and indeed, in the particular case of a shop, the tenant rents it for no other purpose than as a place of sale.
A VASSAL may transmit his feu either to universal successors, as heirs; or to singular successors, i. e. those who acquire by gift, purchase, or other singular title. This last sort of transmission is either voluntary, by disposition; or necessary, by adjudication.
2. By the first feudal rules, no superior could be compelled to receive any vassal in the lands, other than the heir expressed in the investiture; for the superior alone had the power of ascertaining to what order of heirs the fee granted by himself was to descend. But this right of refusal in the superior did not take place, (1.) In the case of creditors appraisers or adjudgers, whom superiors were obliged to receive upon payment of a year's rent (1469, c. 37. 1672, c. 19.): (2.) In the case of purchasers of bankrupt estates, who were put on the same footing with adjudgers by 1690, c. 20. The crown refuses no voluntary disponee, on his paying a composition to the exchequer of a sixth part of the valued rent. Now, by 20 Geo. II. superiors are directed to enter all singular successors (except incorporations) who shall have got from the vassal a disposition, containing procuratory of resignation; they always receiving the fees or casualties that law intitles them to on a vassal's entry, i. e. a year's rent (A).
3. Bare rights, i. e. dispositions to be holden of the disponer, are transmissions only of the property, the superiority remaining as formerly. As this kind of right might, before establishing the registries, have been kept quite concealed from all but the grantor and receiver, a public right was preferable to it, unless
(A) It was long matter of doubt how this composition due to the superior upon the entry of singular successors should be regulated. The matter at last received a solemn decision; finding, That the superior is intitled, for the entry of singular successors, in all cases where such entries are not taxed, to a year's rent of the subject, whether lands or houses, as the same are set, or may be set at the time; deducting the feu-duty and all public burdens, and likewise all annual burdens imposed on the lands by consent of the superior, with all reasonable annual repairs to houses and other perishable subjects.
cloathed with possession: but as this distinction was no longer necessary after the establishment of the records, all infeftments are declared preferable, according to the dates of their several registrations; without respect to the former distinction of base and public, or of being cloathed and not cloathed with possession.
4. Public rights, i. e. dispositions to be holden of the granter's superior, may be perfected either by confirmation or resignation; and therefore they generally contain both precept of seisin and procuratory of resignation. When the receiver is to complete his right in the first way, he takes seisin upon the precept: but such seisin is ineffectual without the superior's confirmation; for the disponee cannot be deemed a vassal till the superior receive him as such, or confirm the holding. By the usual style in the transmission of lands, the disposition contains an obligation and precept of infeftment, both a me and de me, in the option of the disponee; upon which, if seisin is taken indefinitely, it is construed in favour of the disponee to be a base infeftment, because a public right is null without confirmation: but if the receiver shall afterwards obtain the superior's confirmation, it is considered as if it had been from the beginning a public right.
5. Where two several public rights of the same subject are confirmed by the superior, their preference is governed by the dates of the confirmations, not of the infeftments confirmed; because it is the confirmation which completes a public right.
6. Though a public right becomes, by the superior's confirmation, valid from its date; yet if any impediment intervene betwixt that period and the confirmation, to hinder the two from being conjoined, e. g. if the granter of a public right should afterwards grant a base right to another, upon which seisin is taken before the superior's confirmation of the first, the confirmation will have effect only from its own date; and consequently the base right first completed will carry the property of the lands preferable to the public one.
7. Resignation is that form of law, by which a vassal surrenders his feu to his superior; and it is either ad perpetuum remanentiam, or in favorem. In resignations ad remanentiam, where the feu is resigned, to the effect that it may remain with the superior, the superior, who before had the superiority, acquires, by the resignation, the property also of the lands resigned: and as his infeftment in the lands still subsists, notwithstanding the right by which he had given his vassal the property; therefore, upon the vassal's resignation, the superior's right of property revives, and is consolidated with the superiority, without the necessity of a new infeftment; but the instrument of resignation must be recorded.
8. Resignations in favorem are made, not with an intention that the property resigned should remain with the superior, but that it should be again given by him, in favour either of the resigner himself, or of a third party; consequently the fee remains in the resigner, till the person in whose favour resignation is made gets his right from the superior perfected by seisin. And because resignations in favorem are but incomplete personal deeds, our law has made no provision for recording them. Hence, the first seisin on a second resigna-
tion is preferable to the last seisin upon the first resignation; but the superior, accepting a second resignation, whereupon a prior seisin may be taken in prejudice of the first resignatory, is liable in damages.
9. By our former decisions, one who was vested with a personal right of lands, i. e. a right not completed by seisin, effectually divested himself by disposing it to another; after which no right remained in the disponer, which could be carried by a second disposition, because a personal right is no more than a jus obligatorius, which may be transferred by any deed sufficiently expressing the will of the granter. But this doctrine, at the same time that it rendered the security of the records extremely uncertain, was not truly applicable to such rights as required seisin to complete them; and therefore it now obtains, that the granter even of a personal right of lands is not so divested by conveying the right to one person, but that he may effectually make it over afterwards to another; and the preference between the two does not depend on the dates of the dispositions, but on the priority of the seisins following upon them.
An heritable right is said to be redeemable, when it contains a right of reversion, or return, in favour of the person from whom the right flows. Reversions are either legal, which arise from the law itself, as in adjudications, which law declares to be redeemable within a certain term after their date; or conventional, which are constituted by the agreement of parties, as in wadsets, rights of annual rent, and rights in security. A wadset (from wad or pledge) is a right, by which lands, or other heritable subjects, are impignorated by the proprietor to his creditor in security of his debt; and, like other heritable rights, is perfected by seisin. The debtor, who grants the wadset, and has the right of reversion, is called the reverter; and the creditor, receiver of the wadset, is called the wadsetter.
2. Wadsets, by the present practice, are commonly made out in the form of mutual contracts, in which one party sells the land, and the other grants the right of reversion. When the right of reversion is thus incorporated in the body of the wadset, it is effectual without registration; because the singular successor in the wadset is, in that case, sufficiently certified of the reversion, though it be not registered, by looking into his own right, which bears it in gremio. But where the right of reversion is granted in a separate writing, it is ineffectual against the singular successor of the wadsetter, unless it be registered in the register of seisins within 60 days after the date of the seisin upon the wadset.
3. Rights of reversion are generally esteemed fructus juris; yet they go to heirs, though heirs should not be mentioned, unless there be some clause in the right, discovering the intention of parties, that the reversion should be personal to the reverter himself. In like manner, though the right should not express a power to redeem from the wadsetter's heir, as well as from himself, redemption will be competent against the heir. All our lawyers have affirmed, that reversions cannot
be assigned, unless they are taken to assignees; but from the favour of legal diligence, they may be adjudged.
4. Reversions commonly leave the reverser at liberty to redeem the lands quandocumque, without restriction in point of time; but a clause is adjoined to some reversions, that if the debt be not paid against a determinate day, the right of reversion shall be irritated, and the lands shall become the irredeemable property of the wadsetter. Nevertheless, the irritancy being penal, as in wadsets, where the sum lent falls always short of the value of the lands, the right of redemption is by indulgence continued to the reverser, even after the term has expired, while the irritancy is not declared. But the reverser, if he does not take the benefit of this indulgence within 40 years after the lapse of the term, is cut out of it by prescription.
5. If the reverser would redeem his lands, he must use an order of redemption against the wadsetter: the first step of which is premonition (or notice given under form of instrument) to the wadsetter, to appear at the time and place appointed by the reversion, then and there to receive payment of his debt, and thereupon to renounce his right of wadset. In the voluntary redemption of a right of wadset holden base, a renunciation duly registered re-establishes the reverer in the full right of the lands. Where the wadset was granted to be holden of the grantor's superior, the superior must receive the reverser, on payment of a year's rent, if he produce a disposition from the wadsetter, containing procuratory of resignation. If, at executing the wadset, the superior has granted letters of regrefs, i. e. an obligation again to enter the reverser upon redemption of the lands, he will be obliged to receive him, without payment of the year's rent. But letters of regrefs will not have this effect against singular successors in the superiority, if they are not registered in the register of reversions. All wadsets that remain personal rights, are extinguished by simple discharges, though they should not be recorded.
6. If the wadsetter either does not appear at the time and place appointed, or refuses the redemption-money, the reverser must consign it under form of instrument, in the hands of the person appointed in the right of reversion; or, if no person be named, in the hands of the clerk to the bills, a clerk of session, or any responsal person. An instrument of consignation, with the consignatory's receipt of the money consigned, completes the order of redemption, stops the farther currency of interest against the reverser, and founds him in an action for declaring the order to be formal, and the lands to be redeemed in consequence of it.
7. After decree of declarator is obtained, by which the lands are declared to return to the debtor, the consigned money, which comes in place of the lands, becomes the wadsetter's, who therefore can charge the consignatory upon letters of horning to deliver it up to him; but, because the reverser may, at any time before decree, pass from his order, as one may do from any other step of diligence, the consigned sums continue to belong to the reverser, and the wadsetter's interest in the wadset continues heritable till that period.
8. If the wadsetter chooses to have his money ra-
ther than the lands, he must require from the reverser, under form of instrument, the sums due by the wadset, in terms of the right. The wadset-sums continue heritable, notwithstanding requisition, which may be passed from by the wadsetter even after the reverser has consigned the redemption-money in consequence thereof.
9. Wadsets are either proper or improper. A pro-Wadsets per wadset is that whereby it is agreed, that the use proper and of the land shall go for the use of the money; so that improper, the wadsetter takes his hazard of the rents, and enjoys them without accounting, in satisfaction, or in solutum of his interest.
10. In an improper wadset, the reverser, if the rent should fall short of the interest, is taken bound to make up the deficiency; if it amounts to more, the wadsetter is obliged to impute the excrecence towards extinction of the capital: And, as soon as the whole sums, principal and interest, are extinguished by the wadsetter's possession, he may be compelled to renounce, or divest himself in favour of the reverser.
11. If the wadsetter be intitled by his right to enjoy the rents without accounting, and if at the same time the reverser be subjected to the hazard of their deficiency, such contract is justly declared usurious; and also in all proper wadsets wherein any unreasonable advantage has been taken of the debtor, the wadsetter must (by act 1661), during the not requisition of the sum lent, either quit his possession to the debtor, upon his giving security to pay the interest, or subject himself to account for the surplus-rents, as in improper wadsets.
12. Insefts of annualrent, the nature of which has been explained, are also redeemable rights. A right of annualrent does not carry the property of the lands; but it creates a real nexus or burden upon the property, for payment of the interest or annualrent contained in the right; and consequently the bygone interests due upon it are debita fundi. The annualrenter may therefore either insist in a real action for obtaining letters of pointing the ground, or sue the tenant in a personal action towards the payment of his part interest: and in a competition for those rents, the annualrenter's preference will not depend on his having used a pointing of the ground, for his right was completed by the seisin; the power of pointing the ground, arising from that antecedent right, is mere facultatis, and need not be exercised, if payment can be otherwise got. As it is only the interest of the sum lent which is a burden upon the lands, the annualrenter, if he wants his principal sum, cannot recover it either by pointing or by a personal action against the debtor's tenants; but must demand it from the debtor himself, on his personal obligation in the bond, either by requisition, or by a charge of letters of horning, according as the right is drawn.
13. Rights of annualrent, being servitudes upon the property, and consequently consistent with the right of property in the debtor, may be extinguished without resignation.
14. Insefts in security are another kind of redeemable rights (now frequently used in place of rights of annualrent), by which the receivers are infeft in the lands themselves, and not simply in an annualrent forth of them, for security of the principal sums, interest, and
and penalty, contained in the rights. If an infestation in security be granted to a creditor, he may thereupon enter into the immediate possession of the lands or annual rent for his payment. They are extinguished as rights of annual rent.
15. All rights of annual rent, rights in security, and generally whatever constitutes a real burden on the fee, may be the ground of an adjudication, which is preferable to all adjudications, or other diligences, intervening between the date of the right and of the adjudication deduced on it; not only for the principal sum contained in the right, but also for the whole past interest contained in the adjudication. This preference arises from the nature of real debts, or debita fundi: but in order to obtain it for the interest of the interest accumulated in the adjudication, such adjudication must proceed on a process of pointing the ground.
SERVITUDE is a burden affecting lands, or other heritable subjects, whereby the proprietor is either restrained from the full use of what is his own, or is obliged to suffer another to do something upon it. Servitudes are either natural, legal, or conventional. Nature itself may be said to constitute a servitude upon inferior tenements, whereby they must receive the water that falls from those that stand on higher ground. Legal servitudes are established by statute or custom, from considerations of public policy; among which may be numbered the restraints laid upon the proprietors of tenements within the city of Edinburgh. There is as great a variety of conventional servitudes, as there are ways by which the exercise of property may be restrained by passion in favour of another.
2. Conventional servitudes are constituted, either by grant, where the will of the party burdened is expressed in writing: or by prescription, where his consent is presumed from his acquiescence in the burden for 40 years. A servitude constituted by writing, or grant, is not effectual against the grantor's singular successors, unless the grantee has been in the use or exercise of his right: but they are valid against the grantor and his heirs, even without use. In servitudes that may be acquired by prescription, 40 years exercise of the right is sufficient, without any title in writing, other than a charter and seisin of the lands to which the servitude is claimed to be due.
3. Servitudes constituted by grant are not effectual, in a question with the superior of the tenement burdened with the servitude, unless his consent be admitted; for a superior cannot be hurt by his vassal's deed: but where the servitude is acquired by prescription, the consent of the superior, whose right afforded him a good title to interrupt, is implied. A servitude by grant, though followed only by a partial possession, must be governed, as to its extent, by the tenor of the grant; but a servitude by prescription is limited by the measure or degree of the use had by him who prescribes: agreeably to the maxim, Tantum prescriptum, quantum possitum.
4. Servitudes are either predial or personal. Predial servitudes are burdens imposed upon one tenement, in favour of another tenement. That to which the servi-
tude is due is called the dominant, and that which owes it is called the servient tenement. No person can have right to a predial servitude, if he is not proprietor of some dominant tenement that may have benefit by it; for that right is annexed to a tenement, and so cannot pass from one person to another, unless some tenement goes along with it.
5. Predial servitudes are divided into rural servitudes, or of lands; and urban servitudes, or of houses. The Rural servitudes of the Romans were iter, actus, via, via aqueductus, aquabausus, and jus pascendi pecoris. Similar servitudes may be constituted with us, of a foot-road, horse-road, cart-road, dams, and aqueducts, watering of cattle, and pasturage. The right of a highway is not a servitude constituted in favour of a particular tenement, but is a right common to all travellers. The care of high-ways, bridges, and ferries, is committed to the sheriffs, justices of peace, and commissioners of supply in each shire.
6. Common pasturage, or the right of feeding one's cattle upon the property of another, is sometimes constituted by a general clause of pasturage in a charter or disposition, without mentioning the lands burdened; in which case, the right comprehends whatever had been formerly appropriated to the lands disposed out of the grantor's own property, and likewise all pasturage due to them out of other lands. When a right of pasturage is given to several neighbouring proprietors, on a moor or common belonging to the grantor, indefinite as to the number of cattle to be pastured, the extent of their several rights is to be proportioned according to the number that each of them can fodder in winter upon his own dominant tenement.
7. The chief servitudes of houses among the Romans were those of support, viz. signi immittendi, and oneris ferendi. The first was the right of fixing in our neighbours wall a joist or beam from our house: the second was that of resting the weight of one's house upon his neighbour's wall.
8. With us, where different floors or stories of the same house belong to different persons, as is frequent in the city of Edinburgh, the property of the house cannot be said to be entirely divided; the roof remains a common roof to the whole, and the area on which the house stands supports the whole; so that there is a communication of property, in consequence of which the proprietor of the ground-floor must, without the constitution of any servitude, uphold it for the support of the upper, and the owner of the highest story must uphold that as a cover to the lower. When the highest floor is divided into garrets among the several proprietors, each proprietor is obliged, according to this rule, to uphold that part of the roof which covers his own garret.
9. No proprietor can build, so as to throw the rain-water falling from his own house, immediately upon his neighbour's ground, without a special servitude, which is called of stillicide; but, if it falls within his own property, though at the smallest distance from the march, the owner of the inferior tenement must receive it.
10. The servitudes altius non tollendi, et non efficiendi luminibus vel prospectui, restrain proprietors from raising their houses beyond a certain height, or from making any building whatsoever that may hurt the light
or prospect of the dominant tenement. These servitudes cannot be constituted by prescription alone: for, though a proprietor should have his house ever so low, or should not have built at all upon his grounds for 40 years together, he is presumed to have done so for his own convenience or profit; and therefore cannot be barred from afterwards building a house on his property, or raising it to what height he pleases, unless he be tied down by his own consent.
11. We have two predial servitudes to which the Romans were strangers, viz. that of feal or divot, and of thirlage. The first is a right, by which the owner of the dominant tenement may turn up peats, turfs, feals, or divots, from the ground of the servient, and carry them off either for fuel, or thatch, or the other uses of his own tenement.
12. THIRLAGE is that servitude, by which lands are affricted, or thirled, to a particular mill; and the possessors bound to grind their grain there, for payment of certain multures and sequals as the agreed price of grinding. In this servitude, the mill is the dominant tenement, and the lands affricted (which are called affricted or sucken) the servient. Multure is the quantity of grain or meal payable to the proprietor of the mill, or to the multerer his tacksman. The sequals are the small quantities given to the servants, under the name of knave-ship, bannock, and lock or goropen. The quantities paid to the mill by the lands not affricted, are generally proportioned to the value of the labour, and are called out-town or out-sucken multures; but those paid by the thirl are ordinarily higher, and are called in-town or in-sucken multures.
13. Thirlage may be constituted by a land-holder, when, in the disposition of certain lands, he affricts them to his own mill; or when, in the disposition of a mill, he affricts his own lands to the mill disposed; or when, in letting his lands, he makes it a condition in the tacks. The grant of a mill with the general clause of multures, without specifying the lands affricted, conveys the thirlage of all the lands formerly affricted to that mill, whether they were the property of the grantor, or of a third party.
14. A less formal constitution serves to affrict barony-lands to the mill of the barony, than is necessary in any other thirlage; which perhaps proceeds from the effects of the union betwixt the two. Hence, if a baron makes over the mill of a barony, cum multuris, or cum affrictis multuris, it infers an affriction of the barony lands to the mill conveyed, although they had not formerly been affricted. But if, prior to the baron's conveyance of his mill cum multuris, he had sold any part of the barony-lands to another cum multuris, the first purchaser's lands are not affricted by the posterior grant; for a right of lands with the multures, implies a freedom of these lands from thirlage.
15. Thirlage is either, 1. Of grindable corns; or, 2. Of all growing corns; or, 3. Of the inveita et illata, i. e. of all the grain brought within the thirl, though of another growth. Where the thirlage is of grindable grain, it is in practice restricted to the corns which the tenants have occasion to grind, either for the support of their families, or for other uses; the surplus may be carried out of the thirl unmanufactured, without being liable in multure. Where it is of the grana crescencia, the whole grain growing upon the thirl is
affricted, with the exceptions, 1. Of feed and horse-corn, which are destined to uses inconsistent with grinding; and, 2. Of the farm duties due to the landlord, if they are delivered in grain not grinded. But, if the rent be payable in meal, flour, or malt, the grain of which these are made must be manufactured in the dominant mill.
16. The thirlage of inveita et illata is seldom constituted but against the inhabitants of a borough or village, that they shall grind all the unmanufactured grain they import thither at the dominant mill. Multure, therefore, cannot be exacted in a thirlage of inveita et illata, for flour or oat-meal brought into the servient tenement, unless the importer had bought it in grain, and grinded it at another mill. The same grain that owes multure, as grana crescencia, to the mill in whose thirl it grew, if it shall be afterwards brought within a borough where the inveita et illata are thirled, must pay a second multure to the proprietor of that dominant tenement; but, where the right of these two thirlages is in the same proprietor, he cannot exact both. Where lands are thirled in general terms, without expressing the particular nature of the servitude, the lightest thirlage is presumed, from the favour of liberty; but in the affriction of a borough or village, where there is no growing grain which can be the subject of thirlage, the affriction of inveita et illata must be necessarily understood.
17. Thirlage, in the general case, cannot be established by prescription alone, for iii que sunt mere facultatis non prescribuntur; but where one has paid for 40 years together the heavy in-sucken multures, the lightest title in writing will subject his lands. Thirlage may, contrary to the common rule, be constituted by prescription alone, 1. Where one pays to a mill a certain sum, or quantity of grain yearly, in name of multure, whether he grinds at it or not, (called dry multure). 2. In mills of the king's property; which is constituted jure corona, without titles in writing; and, where he derives right from another, his titles are more liable to be lost. This is extended in practice to mills belonging to church-lands, where thirty years possession is deemed equivalent to a title in writing, from a presumption that their rights were destroyed at the reformation. Though thirlage itself cannot be constituted by mere possession, the proportion of multure payable to the dominant tenement may be so fixed.
18. The possessors of the lands affricted are bound to uphold the mill, repair the dam-dykes and aqueducts, and bring home the millstones. These services, though not expressed in the constitution, are implied.
19. Servitudes, being restraints upon property, are stricti juris: they are not therefore presumed, if the acts upon which they are claimed can be explained consistently with freedom; and, when servitudes are constituted, they ought to be used in the way least burdensome to the servient tenement. Hence, one who has a servitude of peats upon his neighbour's moss, is not at liberty to extend it for the use of any manufacture which may require an extraordinary expence of fuel; but must confine it to the natural uses of the dominant tenement.
20. Servitudes are extinguished, (1.) Confusione, when the person comes to be proprietor of the dominant
nant and fervient tenements; for res sua nomini servit, and the use the proprietor thereafter makes of the fervient tenement is not jure servitutis, but is an act of property. (2.) By the perishing either of the dominant or fervient tenement. (3.) Servitudes are lost non utendo, by the dominant tenement neglecting to use the right for 40 years; which is considered as a dereliction of it, though he who has the fervient tenement should have made no interruption by doing acts contrary to the servitude.
21. Personal servitudes are those by which the property of a subject is burdened, in favour, not of a tenement, but of a person. The only personal servitude known in our law, is usufruct or liferent; which is a right to use and enjoy a thing during life, the substance of it being preserved. A liferent cannot therefore be constituted upon things which perish in the use; and though it may upon subjects which gradually wear out by time, as household furniture, &c. yet with us, it is generally applied to heritable subjects. He whose property is burdened, is usually called the far.
22. Liferents are divided into conventional and legal. Conventional liferents are either simple, or by reservation. A simple liferent, or by a separate constitution, is that which is granted by the proprietor in favour of another: And this sort, contrary to the nature of predial servitudes, requires feisin in order to affect singular successors; for a liferent of lands is, in strict speech, not a servitude, but a right resembling property which constitutes the liferenter vassal for life; and singular successors have no way of discovering a liferent-right, which perhaps is not yet commenced, but by the records; whereas, in predial servitudes, the constant use of the dominant tenement makes them public. The proper right of liferent is intransmissible; effibus usufructuarii inheret: When the profits of the liferented subject are transmitted to another, the right becomes merely personal: for it intitles the assignee to the rent, not during his own life, but his cedent's; and is therefore carried by simple assignation, without feisin.
23. A liferent by reservation, is that which a proprietor reserves to himself in the same writing by which he conveys the fee to another. It requires no feisin; for the grantor's former feisin, which virtually included the liferent, still subsists as to the liferent which is expressly reserved. In conjunct insestments taken to husband and wife, the wife's right of conjunct fee resolves, in the general case, into a liferent.
24. Liferents, by law, are the terce and the courtesy. The terce (tertias) is a liferent competent by law to widows, who have not accepted of special provisions, in the third of the heritable subjects in which their husbands died infeft; and takes place only where
the marriage has subsisted for year and day, or where a child has been born alive of it (A).
25. The terce is not limited to lands, but extends to teinds, and to servitudes and other burdens affecting lands; thus, the widow is intitled, in the right of her terce, to a liferent of the third of the sums secured, either by rights of annual rent, or by rights in security. In improper wadsets, the terce is a third of the sum lent: In those that are proper, it is a third of the wadset lands; or, in case of redemption, a third of the redemption money. Neither rights of reversion, superiority, nor patronage, fall under the terce; for none of these have fixed profits, and so are not proper subjects for the widow's subsistence; nor tacks, because they are not feudal rights. Burgage-tenements are also excluded from it, the reason of which is not so obvious. Since the husband's feisin is both the measure and security of the terce, such debts or diligences alone, as exclude the husband's feisin, can prevail over it.
26. Where a terce is due out of lands burdened with a prior terce still subsisting, the second tercer has only right to a third of the two thirds that remain unaffected by the first terce. But upon the death of the first widow, whereby the lands are disburdened of her terce, the lesser terce becomes enlarged, as if the first had never existed. A widow, who has accepted of a special provision from her husband, is thereby excluded from the terce, unless such provision shall contain a clause that she shall have right to both.
27. The widow has no title of possession, and so cannot receive the rents in virtue of her terce, till she be served to it; and in order to this, she must obtain a brief out of the chancery, directed to the sheriff, who calls an inquest, to take proof that she was wife to the deceased, and that her husband died infeft in the subjects contained in the brief. The service or sentence of the jury, finding these points proved, does, without the necessity of a return to the chancery, intitle the wife to enter into the possession; but she can only possess with the heir pro indiviso, and so cannot remove tenants till the sheriff kens her to her terce, or divides the lands between her and the heir. In this division, after determining by lot or kavil, whether to begin by the sun or the shade, i. e. by the east or the west, the sheriff sets off the two first acres for the heir, and the third for the widow. Sometimes the division is executed, by giving one entire farm to the widow, and two of equal value to the heir. The widow's right is not properly constituted by this service; it was constituted before by the husband's feisin, and fixed by his death; the service only declares it, and so intitles her to the third part of the rents retro to her husband's death, preferable to any rights that may have affected the lands in the intermediate period between that and her own.
(A) In the case referred to, when treating of the effects of the dissolution of marriage within the year without a living child, and where no special provisions had been granted to, or accepted by, the widow; she did not demand her legal provisions of terce or jus relictis, but merely insisted, that as widow she was intitled to be alimented out of the heritable estate of which her husband died possessed: So that the decision in that case cannot so properly be said to be an alteration in the law, as an equitable interposition of the court of session, in their capacity as a court of equity, in order to grant a subsistence to the widow of a man whose estate was fully sufficient, and who, it could not reasonably be presumed, would have inclined that his widow should be left destitute, when his estate went perhaps to a distant series of heirs.
own service. The relief, if she was reputed to be lawful wife to the deceased, must be served, notwithstanding any objections by the heir against the marriage, which may be afterwards tried by the commissary.
28. Cousine is a liferent given by law, to the surviving husband, of all his wife's heritage in which she died intestate, if there was a child of the marriage born alive. A marriage, though of the longest continuance, gives no right to the cousine, if there was no issue of it. The child born of the marriage must be the mother's heir: If she had a child of the former marriage, who is to succeed to her estate, the husband has no right to the cousine while such child is alive; so that the cousine is due to the husband, rather as father to an heir, than as husband to an heiress. Heritage is here opposed to conquest; and so is to be understood only of the heritable rights to which the wife succeeded as heir to her ancestors, excluding what she herself had acquired by singular titles.
29. Because the husband enjoys the liferent of his wife's whole heritage, on a lucrative title, he is considered as her temporary representative; and so is liable in payment of all the yearly burdens chargeable on the subject, and of the current interest of all her debts, real and personal, to the value of the yearly rent he enjoys by the cousine. The cousine needs no solemnity to its constitution: That right which the husband had to the rents of his wife's estate during the marriage, jure mariti, is continued with him after her death, under the name of cousine, by an act of the law itself. As in the terce, the husband's seisin is the ground and measure of the wife's right; so in the cousine, the wife's seisin is the foundation of the husband's; and the two rights are, in all other respects, of the same nature; if it is not that the cousine extends to burghage holdings, and to superiorities.
30. All liferenters must use their right salva rei subsistantia: whatever therefore is part of the fee itself, cannot be incroached on by the liferenter, e. g. woods or growing timber, even for the necessary uses of the liferented tenement. But, where a coppice or filoa cadua has been divided into hags, one of which was in use to be cut annually by the proprietor, the liferenter may continue the former yearly cuttings; because these are considered as the annual fruits the subject was intended to yield, and so the proper subject of a liferent.
31. Liferenters are bound to keep the subject liferented in proper repair. They are also burdened with the alimony of the heir, where he has not enough for maintaining himself. The bare right of appurtenance founds the action against the liferenter. It is a burden personal to the liferenter himself, and cannot be thrown upon his adjudging creditors as coming in his place by their diligences. Liferenters are also subjected to the payment of the yearly cesses, stipends, &c. falling due during their right, and to all other burdens that attend the subject liferented.
32. Liferent is extinguished by the liferenter's death. That part of the rents which the liferenter had a proper right to, before his death, falls to his executors; the rest, as never having been in bonis of the deceased, goes to the fiar. Martinmas and Whitunday are, by our custom, the legal terms of the payment of rent: consequently, if a liferenter of lands survives the term of Whitunday, his executors are intitled to the half
of that year's rent, because it was due the term before his death; and if he survives the term of Martinmas, they have right to the whole. If the liferenter, being in the natural possession, and having first sowed the ground, should die, even before Whitunday, his executors are intitled to the whole crop, in respect that both seed and industry were his. In a liferent of money constituted by a moveable bond, the executors have a right to the interest, down to the very day of the liferenter's death, where no terms are mentioned for the payment thereof; but in the case of an heritable bond, or of a money liferent secured on land, the interests of liferenter and fiar (or of heir and executor, for the same rules serve to fix the interests of both) are both governed by the legal terms of land-rent, without regard to the conventional.