PRESSCRIPTION, which is a method, both of establishing and of extinguishing property, is either positive or negative. Positive prescription is generally defined, as the Roman usucapio. The acquisition of property (it should rather be, when applied to our law, the securing it against all further challenge) by the possessor's continuing his possession for the time which law has declared sufficient for that purpose: negative, is the loss or omission of a right, by neglecting to follow it forth, or use it, during the whole time limited by law. The doctrine of prescription, which is, by some writers, condemned as contrary to justice, has been introduced, that the claims of negligent creditors might not subsist for ever, that property might be at last fixed, and forgeries discouraged, which the difficulty of detecting must have made exceeding frequent, if no length of time had limited the legal effect of writings.
2. Positive prescription was first introduced into our law by 1617, c. 12. which enacts, that whoever shall have possessed his lands, annualrents, or other heritages, peaceably, in virtue of infeftments, for 40 years continually after their dates, shall not thereafter be disquieted in his right by any person pretending a better title. Under heritages are comprehended every right that is fundo annexum, and capable of continual possession. Continued possession, if proved as far back as the memory of man, presumes possession upwards to the date of the infeftment. The whole course of possession must by the act be founded on seisins; and consequently no part thereof on the bare right of apparency: but 40 years possession, without seisin, is sufficient in the prescription of such heritable rights as do not require seisin. The possession must also be without any lawful interruption, i. e. it must neither be interrupted via facti, nor via juris. The prescription of subjects not expressed in the infeftment as part and pertinent of another subject specially expressed, has been explained, No clxxvii. 6.
3. The act requires, that the possessor produce, as his title of prescription, a charter of the lands preceding the 40 years possession, with the seisin following on it: and where there is no charter extant, seisin,
one or more, standing together for 40 years, and proceeding either on retours or precepts of clare constat. This has given rise to a reasonable distinction observed in practice, between the prescription of a singular successor, and of an heir. Singular successors must produce for their title of prescription, not only a seisin, but its warrant, as a charter, disposition, &c. either in their own person, or in that of their author: but the production, by an heir, of seisins, one or more, standing together for 40 years, and proceeding on retours or precepts of clare constat, is sufficient. The heir is not obliged to produce the retours or precepts on which his seisins proceed, nor is the singular successor obliged to produce the ground of his charter; for that if the title of prescription produced be a fair deed, and a sufficient title of property, the possessor is secure by the act, which admits no ground of challenge, but falsehood. A special statute, for establishing the positive prescription in moveable rights, was not necessary; for, since a title in writing is not requisite for the acquiring of these, the negative prescription, by which all right of action for recovering their property is cut off, effectually secures the possessor.
4. The negative prescription of obligations, by the Negative lapse of 40 years, was introduced into our law long before the positive, (1469, c. 29.—1474, c. 55.) This prescription is now amplified by the foresaid act (1617), which has extended it to all actions competent upon heritable bonds, reversions, and others whatsoever; unless where the reversions are either incorporated in the body of the wadlet-right, or registered in the register of reversions: And reversions so incorporated, or registered, are not only exempted from the negative prescription, but they are an effectual bar against any person from pleading the positive.
5. A shorter negative prescription is introduced by a shorter statute, in certain rights and debts. Actions of spuilzies, ejection, and others of that nature, must be pursued within three years after the commission of the fact on which the action is founded. As in spuilzies and ejections, the pursuer was entitled, in odium of violence, to a proof by his own oath in litem, and to the violent profits against the defender, the statute meant only to limit these special privileges by a three years prescription, without cutting off the right of action, where the claim is restricted to simple restitution. Under the general words, and others of that nature, are comprehended all actions where the pursuer is admitted to prove his libel by his own oath in litem.
6. Servants fees, house-rents, mens ordinaries, (i. e. Preferment due for board), and merchants accounts, fall under the triennial prescription, (by 1579, c. 83.) There is also a general clause subjoined to this statute, of other the like debts, which includes alimentary debts, wages due to workmen, and accounts due to writers, agents, or procurators. These debts may, by this act, be proved after the three years, either by the writing or oath of the debtor; so that they prescribe only as to the mean of proof by witnesses; but after the three years, it behoves the creditor to refer to the debtor's oath, not only the constitution, but the subsistence of the debt. In the prescription of house-rents, servants fees, and alimony, each term's rent, fee, or alimony, runs a separate course of prescription; so that in an action for these the claim will be restricted to the arrears incurred within the three years immediately before
before the citation: But, in accounts, prescription does not begin till the last article; for a single article cannot be called an account. Actions of removing must also be pursued within three years after the warning. Reductions of erroneous retours prescribe, if not pursued within 20 years.
7. Ministers stipends and multures prescribe in five years after they are due; and arrears of rent, five years after the tenant's removing from the lands. As the prescription of mails and duties was introduced in favour of poor tenants, that they might not suffer by neglecting to preserve their discharges, a proprietor of lands subject to a liferent, who had obtained a lease of all the liferented lands from the liferenter, is not entitled to plead it, nor a tackman of one's whole estate, who had by the lease a power of removing tenants. Bargains concerning moveables, or sums of money which are proveable by witnesses, prescribe in five years after the bargain. Under these are included sales, locations, and all other consensual contracts, to the constitution of which writing is not necessary. But all the abovementioned debts, may, after the five years, be proved, either by the oath or the writing of the debtor; of which above, (par. 6.) A quinquenial prescription is established in arrestments, whether on decrees or depending actions: The first prescribe in five years after using the arrestment, and the last in five years after sentence is pronounced on the depending action.
8. No person binding for or with another, either as cautioner or co-principal, in a bond or contract for a sum of money, continues bound after seven years from the date of the bond, provided he has either a clause of relief in the bond, or a separate bond of relief, intimated to the creditor, at his receiving the bond. But all diligence used within the seven years against the cautioner shall stand good. As this is a public law, intended to prevent the bad consequences of rash engagements, its benefit cannot, before the lapse of the seven years, be renounced by the cautioner. As it is corrective, it is strictly interpreted: Thus, bonds bearing a mutual clause of relief pro rata, fall not under it; nor bonds of corroboration, nor obligations, where the condition is not purified, or the term of payment not come within the seven years; because no diligence can be used on these. The statute excludes all cautionries for the faithful discharge of offices; these not being obligations in a bond or contract for sums of money. And practice has denied the benefit of it to all judicial cautioners, as cautioners in a suspension.—Actions of count and reckoning, competent either to minors against their tutors or curators, or vice versa, prescribe in ten years after the majority or death of the minor.
9. Holograph bonds, missive letters, and books of account, not attested by witnesses, prescribe in 20 years, unless the creditor shall thereafter prove the verity of the subscription by the debtor's oath. It is therefore sufficient to save from the effect of this prescription, that the constitution of the debt be proved by the party's oath after the 20 years; whereas, in stipends, merchants accounts, &c. not only the constitution, but the subsistence of the debt, must be proved by writing or the debtor's oath, after the term of prescription. Some lawyers extend this prescrip-
tion of holograph writings to all obligations for sums not exceeding L. 100 Scots, which are not attested by witnesses; because though these are in practice sustained, yet they ought not to have the same duration with deeds attested by witnesses. Though in the short prescriptions of debts, the right of action is for ever lost, if not exercised within the time limited; yet where action was brought on any of those debts, before the prescription was run, it subsisted, like any other right, for 40 years. As this defeated the purpose of the acts establishing these prescriptions, all processes upon warnings, spuilzies, ejections, or arrestments, or for payment of the debts contained in act 1669, c. 9. are by the said act, joined with 1685, c. 14. declared to prescribe in five years, if not awakened within that time; see No clxxxiii. 26.
10. Certain obligations are lost by the lapse of less than 40 years, without the aid of statute, where the nature of the obligation, and the circumstances of parties, justify it: thus, bills which are not intended for lasting securities, produced no action, where the creditor had been long silent, unless the subsistence of the debt be proved by the debtor's oath; but the precise time was not fixed by practice. But the duration of bills is now limited to six years by the 12 Geo. III.; rendered perpetual by 23 Geo. III. Thus also, a receipt for bills granted by a writer to his employer, not insisted upon for 23 years, was found not productive of an action. The prescriptions of the restitution of minors, of the benefit of inventory, &c. are explained in their proper places.
11. In the positive prescription, as established by the act 1617, the continued possession for 40 years, proceeding upon a title of property not chargeable with falsehood, secures the possessor against all other grounds of challenge, and so presumes bona fides, presumptione juris et de jure. In the long negative prescription, bona fides in the debtor is not required: the creditor's neglecting to insist for so long a time, is construed as an abandoning of his debt, and so is equivalent to a discharge. Hence, though the subsistence of the debt should be referred to the debtor's own oath, after the 40 years, he is not liable.
12. Prescription runs de momento in momentum: the Prescription, a whole time defined by law must be completed, before a right can be either acquired or lost by it; so that interruption, made on the last day of the 40th year, breaks its course. The positive prescription runs against the sovereign himself, even as to his annexed property; but it is generally thought he cannot suffer by the negative: he is secured against the negligence of his officers in the management of processes, by express statute, 1600, c. 14. The negative, as well as the positive prescription, runs against the church, though churchmen have but a temporary interest in their benefices. But because the rights of beneficiaries to their stipends are liable to accidents, through the frequent change of incumbents, 13 years possession does, by a rule of the Roman chancery which we have adopted, found a presumptive title in the beneficiary: but this is not properly prescription; for if by titles recovered, perhaps out of the incumbent's own hands, it shall appear that he has possessed tithes or other subjects to a greater extent than he ought, his possession will be restricted accordingly. This right
must not be confounded with that established in favour of churchmen, which is confined to church lands and rents, and constitutes a proper prescription upon a possession of 30 years.
13. The clause in the act 1617, saving minors from prescription, is extended to the positive, as well as to the negative prescription; but the exception of minority is not admitted in the case of hospitals for children, where there is a continual succession of minors, that being a casus infolitus. Minors are expressly excepted in several of the short prescriptions, as 1579, c. 18.—1669, c. 9.; but where law leaves them in the common case, they must be subject to the common rules.
14. Prescription does not run contra non valentem agere, against one who is barred, by some legal incapacity, from pursuing; for in such case, neither negligence nor dereliction can be imputed to him. This rule is, by a favourable interpretation, extended to wives, who ex reverentia maritali forbear to pursue actions competent to them against their husbands. On the same ground, prescription runs only from the time that the debt or right could be sued upon. Thus, inhibition prescribes only from the publishing of the deed granted to the inhibitor's prejudice; and in the prescription of removing, the years are computed only from the term at which the defender is warned to remove. Neither can prescription run against persons who are already in possession, and so can gain nothing by a pursuit. Thus, where a person, who has two adjudications affecting the same lands, is in possession upon one of them, prescription cannot run against the other during such possession.
15. Certain rights are incapable of prescription:
(1.) Things that law has exempted from commerce.
(2.) Res mera facultatis, e. g. a faculty to charge a subject with debts, to revoke, &c. cannot be lost by prescription; for faculties may, by their nature, be exercised at any time: hence, a proprietor's right of using any act of property on his own grounds, cannot be lost by the greatest length of time. (3.) Exceptions competent to a person for eliding an action, cannot prescribe, unless the exception is founded on a right productive of an action, e. g. compensation; such right must be insisted on within the years of prescription. (4.) Obligations of yearly pensions or payments, though no demand has been made on them for 40 years, do not suffer a total prescription, but still subsist as to the arrears fallen due within that period; because prescription cannot run against an obligation till it be payable, and each year's pension or payment is considered as a separate debt.
16. No right can be lost non utendo by one, unless the effect of that prescription be to establish it in another. Hence the rule arises, juri sanguinis nunquam prescribitur. Hence also, a proprietor of land cannot lose his property by the negative prescription, unless he who objects it can himself plead the positive. On the same ground, a superior's right of feu duties cannot be lost non utendo; because, being inherent in the superiority, it is truly a right of lands that cannot suffer the negative prescription, except in favour of one who can plead the positive; which the vassal cannot do, being destitute of a title. This rule applies also to parsonage tithes, which are an inherent burden
upon all lands not specially exempted; and from which therefore the person liable cannot prescribe an immunity by bare non-payment: but such vicarage tithes as are only due where they are established by usage, may be lost by prescription. In all these cases, though the radical right cannot suffer the negative prescription, the bygone duties, not demanded within the 40 years, are lost to the proprietor, superior, or titular.
17. Prescription may be interrupted by any deed whereby the proprietor or creditor uses his right or ground of debt. In all interruptions, notice must be given to the possessor of the subject, or the debtor, that the proprietor or creditor intends to sue upon his right. All writings whereby the debtor himself acknowledges the debt, and all processes for payment brought, or diligences used against him upon his obligation, by homing, inhibition, arrestment, &c. must be effectual to interrupt prescription.
18. Interruptions, by citation upon libelled summonses, where they are not used by a minor, prescribe, if not renewed every seven years: but where the appearance of parties, or any judicial act has followed thereupon, it is no longer a bare citation, but an action which subsists for 40 years. It has been found, that the sexennial prescription of bills is not interrupted by a blank citation, as practised in the court of admiralty. Citations for interrupting the prescription of real rights must be given by messengers; and the summonses, on which such citations proceed, must pass the signet upon the bill, and be registered within 60 days after the execution, in a particular register appointed for that purpose: and where interruption of real rights is made via facti, an instrument must be taken upon it, and recorded in the said register; otherwise it can have no effect against singular successors.
19. Interruption has the effect to cut off the course of prescription, so that the person prescribing can avail himself of no part of the former time, but must begin a new course, commencing from the date of the interruption. Minority, therefore, is no proper interruption: for it neither breaks the course of prescription, nor is it a document or evidence taken by the minor on his right: it is a personal privilege competent to him, by which the operation of the prescription is indeed suspended during the years of minority, which are therefore discounted from it; but it continues to run after majority, and the years before and after the minority may be conjoined to complete it. The same doctrine applies to the privilege arising from one's incapacity to act.
20. Diligence used upon a debt, against any one of two or more co-obligants, preserves the debt itself, and so interrupts prescription against all of them; except in the special case of cautioners, who are not affected by any diligence used against the principal debtor. In the same manner, a right of annual rent, constituted upon two separate tenements, is preserved as to both from the negative prescription, by diligence used against either of them. But whether such diligence has also the effect to hinder the possessor of the other tenement by singular titles from the benefit of the positive prescription, may be doubted.
Successors singular and universal. SINGULAR successors are those who succeed to a person yet alive, in a special subject by singular titles; but succession, in its proper sense, is a method of transmitting rights from the dead to the living. Heritable rights descend by succession to the heir properly so called; moveable rights to the executors, who are sometimes said to be heirs in moveables. Succession is either by special destination, which descends to those named by the proprietor himself; or legal, which devolves upon the persons whom the law marks out for successors, from a presumption, that the proprietor would have named them had he made a destination. The first is in all cases preferred to the other, as presumption must yield to truth.
Order of succession in heritage. 2. In the succession of heritage, the heirs at law are otherwise called heirs general, heirs whatsoever, or heirs of line; and they succeed by the right of blood, in the following order. First, descendants; among these, sons are preferred to daughters, and the eldest son to all the younger. Where there are daughters only, they succeed equally, and are called heirs-portioners. Failing immediate descendants, grandchildren succeed; and in default of them, great-grandchildren; and so on in infinitum: preferring, as in the former case, males to females, and the eldest male to the younger.
Collateral. 3. Next after descendants, collaterals succeed; among whom the brothers german of the deceased have the first place. But as, in no case, the legal succession of heritage is, by the law of Scotland, divided into parts, unless where it descends to females; the immediate younger brother of the deceased excludes the rest, according to the rule, heritage descends. Where the deceased is himself the youngest, the succession goes to the immediate elder brother, as being the least deviation from this rule. If there are no brothers german, the sisters german succeed equally: then brothers consanguinean, in the same order as brothers german; and failing them, sisters consanguinean equally. Next, the father succeeds. After him, his brothers and sisters, according to the rules already explained; then the grand-father; failing him, his brothers and sisters; and so upwards, as far back as propinquity can be proved. Though children succeed to their mother, a mother cannot to her child; nor is there any succession by our law through the mother of the deceased; in so much that one brother uterine, i. e. by the mother only, cannot succeed to another, even in that estate which flowed originally from their common mother.
Succession in capita and in stirps. 4. In heritage there is a right of representation, by which one succeeds, not from any title in himself, but in the place, and as representing some of his deceased ascendants. Thus, where one leaves a younger son, and a grandchild by his eldest, the grandchild, though farther removed in degree from the deceased than his uncle, excludes him, as coming in place of his father the eldest son. Hence arises the distinction between succession in capita, where the division is made into as many equal parts as there are capita or heirs, which is
the case of heirs-portioners; and succession in stirps, where the remoter heirs draw no more among them than the share belonging to their ascendent or stirps, whom they represent; an example of which may be figured in the case of one who leaves behind him a daughter alive, and two grand-daughters by a daughter deceased. In which case the two grand-daughters would succeed equally to that half which would have belonged to their mother had she been alive.
5. In the succession of heirs-portioners, indivisible succession rights, e. g. titles of dignity, fall to the eldest sister. A single right of superiority goes also to the eldest; for it hardly admits a division, and the condition of the vassal ought not to be made worse by multiplying superiors upon him. Where there are more such rights, the eldest may perhaps have her election of the best; but the younger sisters are intitled to a recompence, in so far as the divisions are unequal; at least, where the superiorities yield a constant yearly rent. The principal feat of the family falls to the eldest, with the garden and orchard belonging to it, without recompence to the younger sisters; but all other houses are divided amongst them, together with the lands on which they are built, as parts and pertinents of these lands. A præcipuum, however, is due only in the case of succession of heirs-portioners ab intestato; and therefore there is no place for it where the succession is taken under a deed.
6. Those heritable rights, to which the deceased did himself succeed as heir to his father or other ancestor, get sometimes the name of heritage in a strict sense, in opposition to the feuda nova, or feus of conquest, which he had acquired by singular titles, and which descend, not to his heir of line, but of conquest. This distinction obtains only where two or more brothers or uncles, or their issue, are next in succession; in which case, the immediate younger brother, as heir of line, succeeds to the proper heritage, because that descends; whereas the conquest ascends to the immediate elder brother. It has no place in female succession, which the law divides equally among the heirs-portioners. Where the deceased was the younger brother, the immediate elder brother is heir both of line and of conquest. An estate disposed by a father to his eldest son, is not conquest in the son's person, but heritage; because the son would have succeeded to it, though there had been no disposition. The heir of conquest succeeds to all rights affecting land, which require seisin to perfect them. But tacks go to the heir of line; because they are merely a burden on the fruits, not on the land. Tacks do not fall under conquest, because they are complete rights without seisin; nor personal bonds taken to heirs excluding executors.
7. The heir of line is intitled to the succession, not only of subjects properly heritable, but to that sort of moveables called heirship, which is the best of certain kinds. This doctrine has been probably introduced, that the heir might not have an house and estate to succeed to, quite dismantled by the executor. In that sort which goes by pairs or dozens, the best pair or dozen is the heirship. There is no heirship in fungibles, or things estimated by quantity; as grain, hay, current money, &c. To intitle an heir to this privilege, the deceased must have been either, (1.) A prelate: (2.) A baron,
baron, i. e. who flood infest at his death in lands, tho' not erected into a barony; or even in a right of annual rent: Or, (3.) A burgess; not an honorary one, but a trading burgess of a royal borough, or at least one intitled to enter burgess in the right of his ancestor. Neither the heir of conquest, nor of tailzie, has right to heirship-moveables.
8. As to succession by destination, no proprietor can settle any heritable estate, in the proper form of a testament; not even bonds excluding executors, tho' these are not heritable ex sua natura: But, where a testament is in part drawn up in the style of a deed inter vivos, such part of it may contain a settlement of heritage, though executors should be named in the testamentary part. The common method of settling the succession of heritage is by disposition, contract of marriage, or simple procuratory of resignation: and, tho' a disposition settling heritage should have neither precept nor procuratory, it founds an action against the heir of line to complete his titles to the estate; and thereafter divest himself in favour of the disponee. The appellation of tailzie, or entail, is chiefly used in the case of a land estate, which is settled on a long series of heirs substituted one after another. The person first called in the tailzie, is the institute; the rest, the heirs of tailzie, or the substitutes.
9. Tailzies, when considered in relation to their several degrees of force, are either, (1.) Simple destinations: (2.) Tailzies with prohibitory clauses. (3.) Tailzies with prohibitory, resolutive, and irritant clauses. That is a simple destination, where the persons called to the succession are substituted one after another, without any restraint laid on the exercise of their property. The heirs, therefore, succeeding to such estate, are absolute siars, and consequently may alter the destination at pleasure.
10. In tailzies with clauses prohibitory, e. g. declaring that it shall not be lawful to the heirs to contract debts or alien the lands in prejudice of the succession, none of the heirs can alien gratuitously. But the members of entail may contract debts which will be effectual to the creditors, or may dispose of the estate for onerous causes. In both these sorts, the maker himself may alter the tailzie; except, (1.) Where it has been granted for an onerous cause, as in mutual tailzies; or (2.) Where the maker is expressly disabled, as well as the institute or the heirs.
11. Where a tailzie is guarded with irritant and resolutive clauses, the estate entailed cannot be carried off by the debt, or deed, of any of the heirs succeeding thereto, in prejudice of the substitutes. It was long doubted, whether such tailzies ought to be effectual, even where the superior's consent was adhibited; because they sunk the property of estates, and created a perpetuity of liferents. They were first explicitly authorised by 1685, c. 22. By this statute, the entail must be registered in a special register established for that purpose; and the irritant and resolutive clauses must be inserted, not only in the procuratories, precepts, and seals, by which the tailzies are first constituted, but in all the after conveyances thereof; otherwise they can have no force against singular successors. But a tailzie, even without these requisites, is effectual against the heir of the grantor, or against the institute who accepts of it. It has been found, that an entail,
tho' completed by infestment before the act 1685, was ineffectual, because not recorded in terms of the act.
12. An heir of entail has full power over the entailed estate, except in so far as he is expressly fettered; and as entails are an unfavourable restraint upon property, and a frequent snare to trading people, they are strictissimi juris: so that no prohibition or irritancies are to be inferred by implication. By 10 George III. c. 51. heirs of entail are intitled (notwithstanding any restrictions in the deed of entail) to improve their estates by granting leases, building farm-houses, draining, inclosing, and excambing, under certain limitations, and to claim repayment of three-fourths of the expence from the next heir of entail.—This act extends to all tailzies, whether made prior or posterior to the 1685.
13. An heir, who counteracts the directions of the Contravention, by aliening any part of the estate, charging it with debt, &c. is said to contravene. It is not the simple contracting of debt that infers contravention; the lands entailed must be actually adjudged upon the debt contracted. An heir may, where he is not expressly barred, settle rational provisions on his wife and children, without incurring contravention. It is not quite clear whether the heirs also of the contravener would forfeit their right from the acts or deeds of their predecessor where there is no express clause in the entail settling it; and though the words of the act 1685 (which declares, that entails executed according to the directions of it, shall be effectual not only against the contravener and his heirs, but against creditors), may seem to favour the idea that heirs also would forfeit, the more favourable opinion has received the sanction of our supreme court. For the greater security, however, a clause is now usually inserted in tailzies, declaring, that the contravention of the heir in possession shall not affect his descendants, when such is the intention of the grantor.
14. When the heirs of the last person specially called in a tailzie come to succeed, the irritancies have no longer any person in favour of whom they can operate; and consequently, the fee, which was before tailzied, becomes simple and unlimited in the person of such heirs. By the late act 20th Geo. II. for abolishing wardholdings, the king may purchase lands within Scotland, notwithstanding the strictest entail; and where the lands are in the hands of minors or fatuous persons, his majesty may purchase them from the curators or guardians. And heirs of entail may sell to their vassals the superiorities belonging to the entailed estate; but in all these cases, the price is to be settled in the same manner that the lands or superiorities sold were settled before the sale.
15. Rights, not only of land-estates, but of bonds, are sometimes granted to two or more persons in conjunction. Where a right is so granted to two strangers, without any special clause adjoined to it, each of them has an equal interest in the fee, and the part of the deceased descends to his own heir. If the right be taken to the two jointly, and the longest liver and their heirs, the several shares of the conjunct siars are affectable by their creditors during their lives: but, on the death of any one of them, the survivor has the fee of the whole, in so far as the share of the predeceased remains free, after payment of his debts. Where the right is taken to the two in conjunct fee, and to the heirs
heirs of one of them, he to whose heirs the right is taken is the only fiar; the right of the other resolves into a simple liferent: yet where a father takes a right to himself and his son jointly, and to the son's heirs, such right being gratuitous, is not understood to strip the father of the fee, unless a contrary intention shall plainly appear from the tenor of the right.
16. Where a right is taken to a husband and wife, in conjunct fee and liferent, the husband, as the persona dignior, is the only fiar: the wife's right resolves into a liferent, unless it be presumable, from special circumstances, that the fee was intended to be in the wife. Where a right of moveables is taken to husband and wife, the heirs of both succeed equally, according to the natural meaning of the words.
17. Heirs of provision are those who succeed to any subject, in virtue of a provision in the investiture, or other deed of settlement. This appellation is given most commonly to heirs of a marriage. These are more favourably regarded than heirs by simple destination, who have only the hope of succession; for heirs of a marriage, because their provisions are constituted by an onerous contract, cannot be disappointed of them by any gratuitous deed of the father. Nevertheless, as their right is only a right of succession, which is not designed to restrain the father from granting onerous or rational deeds, he continues to have the full power of selling the subject, or charging it with debts, unless a proper right of credit be given to the heir by the marriage contract. e.g. if the father should oblige himself to infest the heir in the lands, or make payment of the sum provided against a day certain, or when the child attains a certain age, &c.; for such rights, when perfected by infestation, or secured by diligence, are effectual against all the posterior deeds of the father, even onerous.
18. Though all provisions to children, by a marriage contract conceived in the ordinary form, being merely rights of succession, are postponed to every onerous debt of the granter, even to those contracted posterior to the provisions; yet where a father executes a bond of provision to a child actually existing, whether such child be the heir of a marriage or not, a proper debt is thereby created, which, though it be without doubt gratuitous, is not only effectual against the father himself and his heirs, but is not reducible at the instance even of his prior onerous creditors, if he was solvent at the time of granting it. A father may, notwithstanding a first marriage contract, settle a jointure on a second wife, or provide the children of a second marriage; for such settlements are deemed onerous; but where they are exorbitant, they will be restricted to what is rational: and in all such settlements, where the provisions of the first marriage contract are incroached upon, the heirs of that marriage have recourse against the father, in case he should afterwards acquire a separate estate, which may enable him to fulfil both obligations.
19. In marriage contracts, the conquest, or a certain part of it, is frequently provided to the issue; by which is understood whatever real addition shall be made to the father's estate during the marriage by purchase or donation. Conquest therefore must be free, i. e. what remains after payment of debts due by the father. As in other provisions, so in conquest; the father is still
fiar, and may therefore dispose of it for onerous or rational causes. Where heritable rights are provided to the heirs of a marriage, they fall to the eldest son, for he is the heir at law in heritage. Where a sum of money is so provided, the word heir is applied to the subject of the provision, and so marks out the executor, who is the heir in moveables. When an heritable right is provided to the bairns (or issue) of a marriage, it is divided equally among the children, if no division be made by the father; for such destination cuts off the exclusive right of the legal heir. No provision granted to bairns, gives a special right of credit to any one child, as long as the father lives: the right is granted familia; so that the whole must indeed go to one or other of them; but the father has a power inherent in him, to divide it among them, in such proportions as he thinks best, yet so as none of them may be entirely excluded, except in extraordinary cases.
20. A clause of return is that, by which a sum in a bond or other right, is in a certain event limited to return to the granter himself, or his heirs. When a right is granted for onerous causes, the creditor may defeat the clause of return, even gratuitously. But, where the sum in the right flows from the granter, or where there is any other reasonable cause for the provision of return in his favour, the receiver cannot disappoint it gratuitously. Yet since he is fiar, the sum may be either assigned by him for an onerous cause, or affected by his creditors.
21. An heir is, in the judgment of law, eadem per. Heirs. sona cum defuncto, and so represents the deceased universally, not only in his rights, but in his debts: in the first view, he is said to be heir active; in the second, passive. From this general rule are excepted, heirs substituted in a special bond, and even substituted in a disposition omnium bonorum, to take effect at the granter's death; for such substitutes are considered as singular successors, and their right as an universal legacy, which does not subject the legatee ultra valorem, but heirs male or of tailzie, though their right be limited to special subjects, are liable, not merely to the extent of the subject entailed or provided, but in solidum; because such rights are designed to carry an universal character, and so infer an universal representation of the granter. The heir of line is primarily liable for the debts of his predecessor; for he is the most proper heir, and so must be discussed before any other can be pursued; next to him the heir of conquest, because he also succeeds to the universitas of the whole heritable rights which his predecessor had acquired by singular titles; then, the heir male, or of a marriage; for their propinquity of blood subjects them more directly than any other heir of tailzie, who may possibly be a stranger; and who for that reason is not liable to be discussed, except for such of the predecessor's debts or deeds as relate specially to the lands tailzied; as to which he is liable even before the heir of line. Heirs portioners are liable pro rata for their predecessors debts; but if any of them prove insolvent, the creditor may, after discussing her, insist for her share against the rest, who will be liable in so far as they are lucratæ by the succession. Where an heir, liable subsidiarius, pays the predecessor's debt, he has relief against the heir who is more directly liable, in respect of whom he is not co-heir, but creditor.
22. Before an heir can have an active title to his ancestor's rights, he must be entered by service and retour. He who is intitled to enter heir, is, before his actual entry, called apparent heir. The bare right of apparentry carries certain privileges with it. An apparent heir may defend his ancestor's titles against any third party who brings them under challenge. Tenants may safely pay him their rents; and after they have once acknowledged him by payment, he may compel them to continue it; and the rents not uplifted by the apparent heir belong to his executors, upon his death.
23. As an heir is, by his entry, subjected universally to his ancestor's debts, apparent heirs have therefore a year (annus deliberandi) allowed to them from the ancestor's decease, to deliberate whether they will enter or not; till the expiry of which, though they may be charged by creditors to enter, they cannot be sued in any process founded upon such charge. Though declaratory actions, and others which contain no personal conclusion, may be pursued against the apparent heir, without a previous charge; action does not lie even upon these, within the year, if the heir cannot make the proper defences without incurring a passive title. But judicial sales, commenced against an ancestor, may by special act of federunt be continued upon a citation of the heir, without waiting the year of deliberating. This annus deliberandi is computed, in the case of a posthumous heir, from the birth of such heir. An apparent heir, who, by immixing with the estate of his ancestor, is as much subjected to his debts as if he had entered, can have no longer a right to deliberate whether he will enter or not.
24. All services proceed on briefs from the chancery, which are called briefs of inquest, and have been long known in Scotland. The judge, to whom the brief is directed, is required to try the matter by an inquest of 15 sworn men. The inquest, if they find the claim verified, must declare the claimant heir to the deceased, by a verdict or service, which the judge must attest, and return the brief, with the service proceeding on it, to the chancery; from which an extract is obtained called the retour of the service.
25. The service of heirs is either general or special. A general service vests the heir in the right of all heritable subjects, which either do not require seisin, or which have not been perfected by seisin in the person of the ancestor. A public right, therefore, according to the feudal law, though followed by seisin, having no legal effects till it be confirmed by the superior, must, as a personal right, be carried by a general service. A special service, followed by seisin, vests the heir in the right of the special subjects in which the ancestor died in seisin.
26. If an heir, doubtful whether the estate of his ancestor be sufficient for clearing his debts, shall, at any time within the annus deliberandi, exhibit upon oath a full inventory of all his ancestor's heritable subjects, to the clerk of the shire where the lands lie; or, if there is no heritage requiring seisin, to the clerk of the shire where he died; and if, after the same is subscribed by the sheriff or sheriff-depute, the clerk, and himself, and registered in the sheriff's books, the extract thereof shall be registered within forty days after expiry of the annus deliberandi in the general register appointed for No 178.
that purpose, his subsequent entry will subject him no farther than to the value of such inventory. If the inventory be given up and registered within the time prescribed, the heir may serve on it, even after the year.
27. Creditors are not obliged to acquiesce in the value of the estate given up by the heir; but, if they be real creditors, may bring the estate to a public sale, in order to discover its true value; since an estate is always worth what can be got for it. An heir by inventory, as he is in effect a trustee for the creditors, must account for that value to which the estate may have been improved since the death of the ancestor, and he must communicate to all the creditors the cases he has got in transacting with any one of them.
28. Practice has introduced an anomalous sort of entry, without the interposition of an inquest, by the sole consent of the superior; who, if he be satisfied that the person applying to him is the next heir, grants him a precept (called of clare constat, from the first words of its recital), commanding his bailie to infect him in the subjects that belonged to his ancestor. The heir, by taking seisin on this precept, becomes passive, liable for all the debts of his ancestor; and on the other hand, acquires an active title, as to the subjects contained in the precept in questions with the superior or his heirs; and they may, when followed by seisin, afford a title of prescription: But as no person can be declared an heir by private authority, they cannot bar the true heir from entering after 20 years, as a legal entry would have done; the true heir, in such case, having it still in his power to set aside that right, and obtain himself regularly served at any time within the years of prescription. Of the same nature is the entry by hasp and staple, commonly used in burghage tenements of houses; by which the bailie, without calling an inquest, cognosces or declares a person heir, upon evidence brought before himself; and, at the same time infects him in the subject, by the symbol of the hasp and staple of the door. Charges given by creditors to apparent heirs to enter, stand in the place of an actual entry, so as to support the creditor's diligence (clxxii. 2.).
29. A general service cannot include a special one; since it has no relation to any special subject, and carries only that class of rights on which seisin has not proceeded; but a special service implies a general one of the same kind or character, and consequently carries even such rights as have not been perfected by seisin. Service is not required to establish the heir's right in titles of honour, or offices of the highest dignity; for these descend jure sanguinis.
30. An heir, by immixing with his ancestor's estate without entry, subjects himself to his debts, as if he had entered; or, in our law-phrase, incurs a passive title. The only passive title by which an apparent heir becomes liable universally for all his ancestor's debts, is gestio pro herede, or his behaving as none but an heir Gestio pro herede. Behaviour as heir is inferred from the apparent heir's intromission, after the death of the ancestor, with any part of the lands or other heritable subjects belonging to the deceased, to which he himself might have completed an active title by entry.
31. This passive title is excluded, if the heir's intromission be by order of law; or if it be founded on singular
singular titles, and not as heir to the deceased. But an apparent heir's purchasing any right to his ancestor's estate, otherwise than at public roup (auction), or his possessing it in virtue of rights settled in the person of any near relation of the ancestor, to whom he himself may succeed as heir, otherwise than upon purchase by public sale, is deemed behaviour as heir.
32. Behaviour as heir is also excluded, where the intromission is small, unless an intention to defraud the ancestor's creditors be presumable from the circumstances attending it. Neither is behaviour inferred against the apparent heir, from the payment of his ancestor's debt, which is a voluntary act, and profitable to the creditors: nor by his taking out of briefs to serve; for one may alter his purpose, while it is not completed: nor by his assuming the titles of honour belonging to his ancestor, or exercising an honorary office hereditary in the family; for these are rights annexed to the blood, which may be used without proper representation. But the exercising an heritable office of profit, which may pass by voluntary conveyance, and consequently is adjudgeable, may reasonably be thought to infer a passive title. Lastly, as passive titles have been introduced, merely for the security of creditors; therefore, where questions concerning behaviour arise among the different orders of heirs, they are liable to one another no farther than in valorem of their several intromissions.
33. Another passive title in heritage, may be incurred by the apparent heir's accepting a gratuitous right from the ancestor, to any part of the estate to which he himself might have succeeded as heir; and it is called preceptio hereditatis, because it is a taking of the succession by the heir before it opens to him by the death of his ancestor. If the right be onerous, there is no passive title; if the consideration paid for it does not amount to its full value, the creditors of the deceased may reduce it, in so far as it is gratuitous, but still it infers no passive title.
34. The heir incurring this passive title is no farther liable, than if he had at the time of his acceptance entered heir to the grantor, and so subjected himself to the debts that were then chargeable against him; but with the posterior debts he has nothing to do, not even with those contracted between the date of the right and the investiture taken upon it, and he is therefore called successor titulo lucrativo post contractum debitum.
35. Neither of these passive titles takes place, unless the subject intermeddled with or disposed be such as the intromitter or receiver would succeed to as heir. In this also, these two passive titles agree, that the intromission in both must be after the death of the ancestor; for there can be no termini habiles of a passive title, while the ancestor is alive. But in the following respect they differ: Gesio pro herede, being a vicious passive title founded upon a quasi delictum, cannot be objected against the delinquent's heir, if process has not been litiscontested while the delinquent himself was alive; whereas the successor titulo lucrativo is by the acceptance of the disposition understood to have entered into a tacit contract with the grantor's creditors, by which he undertakes the burden of their debts; and all actions founded on contract are transmissible against heirs.
36. An apparent heir, who is cited by the ancestor's creditor in a process for payment, if he offers any pre-emptory defence against the debt, incurs a passive title; for he can have no interest to object against it, but in the character of heir. In the same manner, the heir's not renouncing upon a charge to enter heir, infers it: But the effect of both these is limited to the special debt pursued for, or charged upon. This passive title, which is inferred from the heir's not renouncing, has no effect till decree pass against him; and even a renunciation offered after decree, if the decree be in absence, will intitle the heir to a suspension of all diligence against his person and estate, competent upon his ancestor's debts.
37. By the principles of the feudal law, an heir, when he is to complete his titles by special service, must necessarily pass over his immediate ancestor, e.g. his father, if he was not infest; and serve heir to that ancestor who was last vest and feised in the right, and in whose hereditas jacens the right must remain, till a title be connected thereto from him. As this bore hard upon creditors who might think themselves secure in contracting with a person whom they saw for some time in the possession of an estate, and from thence concluded that it was legally vested in him; it is therefore provided by act 1695, that every person, passing over his immediate ancestor who had been three years in possession, and serving heir to one more remote, shall be liable for the debts and deeds of the person interjected, to the value of the estate to which he is served. This being correctory of the feudal maxims, has been strictly interpreted, so as not to extend to the gratuitous deeds of the person interjected, nor to the case where the interjected person was a naked fiar, and possessed only civilly through the liferenter.
38. Our law, from its jealousy of the weakness of mankind while under sickness, and of the importunity of friends on that occasion, has declared that all deeds affecting heritage, if they be granted by a person on deathbed, (i. e. after contracting that sickness which ends in death), to the damage of the heir, are ineffectual, except where the debts of the grantor have laid him under a necessity to alien his lands. As this law of deathbed is founded solely in the privilege of the heir, deathbed-deeds, when consented to by the heir, are not reducible. The term properly opposed to deathbed is liege possit, by which is understood a state of health; and it gets the name, because persons in health have the legitima potestas, or lawful power, of disposing of their property at pleasure.
39. The two extremes being proved, of the grantor's sickness immediately before signing, and of his death following it, though at the greatest distance of time, did, by our former law, found a presumption that the deed was granted on deathbed, which could not have been elided but by a positive proof of the grantor's convalescence; but now the allegation of deathbed is also excluded, by his having lived 60 days after signing the deed. The legal evidence of convalescence is the grantor's having been, after the date of the deed, at kirk OR market unsupported; for a proof of either will secure the deed from challenge. The going to kirk or market must be performed when the people are met together in the church or churchyard for any public meeting, civil or ecclesiastical, or in the mar-
ket-place at the time of public market. No other proof of convalescence is receivable, because at kirk and market there are always present unsuspected witnesses, which we can hardly be sure of in any other case.
40. The privilege of setting aside deeds ex capite liti, is competent to all heirs, not to heirs of line only, but of conquest, tailzie, or provision; not only to the immediate, but to remoter heirs, as soon as the succession opens to them. But, where it is consented to or ratified by the immediate heir, it is secured against all challenge, even from the remoter. Yet the immediate heir cannot, by any antecedent writing, renounce his right of reduction, and thereby give strength to deeds that may be afterwards granted in lito to his hurt; for no private renunciation can authorise a person to act contrary to a public law; and such renunciation is presumed to be extorted through the fear of exheredation. If the heir should not use this privilege of reduction, his creditor may, by adjudication, transfer it to himself; or he may, without adjudication, reduce the deed, libelling upon his interest as creditor to the heir: But the grantor's creditors have no right to this privilege, in regard that the law of deathbed was introduced, not in behalf of the grantor himself, but of his heir.
41. The law of deathbed strikes against dispositions of every subject to which the heir would have succeeded, or from which he would have had any benefit, had it not been so disposed. Deathbed-deeds granted in consequence of a full or proper obligation in liege poussie, are not subject to reduction; but, where the antecedent obligation is merely natural, they are reducible. By stronger reason, the deceased cannot, by a deed merely voluntary, alter the nature of his estate on deathbed to the prejudice of his heir, so as from heritable to make it moveable; but if he should, in liege poussie, exclude his apparent heir, by an irrevocable deed containing reserved faculties, the heir cannot be heard to quarrel the exercise of these faculties on death-bed.
42. In a competition between the creditors of the deceased and of the heir, our law (act 1661) has justly preferred the creditors of the deceased, as every man's estate ought to be liable, in the first place, for his own debt. But this preference is, by the statute, limited to the case where the creditors of the deceased have used diligence against their debtor's estate, within three years from his death; and therefore the heir's creditors may, after that period, affect it for their own payment. All dispositions by an heir, of the ancestor's estate, within a year after his death, are null, in so far as they are hurtful to the creditors of the ancestor. This takes place, though these creditors should have used no diligence, and even where the dispositions are granted after the year: It is thought they are ineffectual against the creditors of the deceased who have used diligence within the three years.
In the succession of moveable rights, it is an universal rule, that the next in degree to the deceased (or next of kin) succeeds to the whole; and if there are two or more equally near, all of them succeed by equal parts, without that prerogative, which takes place in
heritage, of the eldest son over the younger, or of males over females. Neither does the right of representation (explained no clxxx. 4.) obtain in the succession of moveables, except in the single case of a competition between the full blood and the half blood; for a niece by the full blood will be preferred before a brother by the half blood, though she is by one degree more remote from the deceased than her uncle. Where the estate of a person deceased consists partly of heritage, and partly of moveables, the heir in the heritage has no share of the moveables, if there are others as near in degree to the deceased as himself: But where the heir, in such case, finds it his interest to renounce his exclusive claim to the heritage, and betake himself to his right as one of the next of kin, he may collate or communicate the heritage with the others, who in their turn must collate the moveables with him; so that the whole is thrown into one mass, and divided equally among all of them. This doctrine holds, not only in the line of descendants, but of collaterals; for it was introduced, that the heir might in no case be worse than the other next of kin.
2. One may settle his moveable estate upon whom he pleases, excluding the legal successor, by a testament; which is a written declaration of what a person wills to be done with his moveable estate after his death. No testamentary deed is effectual till the death of the testator; who may therefore revoke it at pleasure, or make a new one, by which the first loses its force, according to the rule, voluntas testatoris est ambulatoria usque ad mortem; and hence testaments are called last or latter wills. Testaments, in their strict acceptance, must contain a nomination of executors, i. e. of persons appointed to administer the succession according to the will of the deceased: Yet nothing hinders one from making a settlement of moveables, in favour of an universal legatee, though he should not have appointed executors; and on the other part, a testament where executors are appointed is valid, though the person who is to have the right of succession should not be named. In this last case, if the executor nominated be a stranger, i. e. one who has no legal interest in the moveable estate, he is merely a trustee, accountable to the next of kin; but he may retain a third of the dead's part (explained par. 6.) for his trouble in executing the testament; in payment of which, legacies, if any be left to him, must be imputed. The heir, if he be named executor, has right to the third as a stranger; but if one be named who has an interest in the legal succession, he has no allowance, unless such interest be less than a third. Nuncupative or verbal testaments are not, by the law of Scotland, effectual for supporting the nomination of an executor, let the subject of the succession be ever so small: But verbal legacies, not exceeding L. 100 Scots, are sustained: and even where they are granted for more, they are ineffectual only as to the excess.
3. A legacy is a donation by the deceased, to be paid by the executor to the legatee. It may be granted either in the testament or in a separate writing. Legacies are not due till the grantor's death; and consequently they can transmit no right to the executors of the legatee, in the event that the grantor survives him. A case occurred some years ago, where a testator left a legacy payable when the legatee arrived at a certain age. The legatee survived the testator.
tor, but died before the legacy was payable. It was found, chiefly upon the authority of the Roman law, that the legacy vested in the legatee a morte testatoris, and upon his decease was due to the legatee's next of kin.
4. Legacies, where they are general, i. e. of a certain sum of money indefinitely, give the legatee no right in any one debt or subject; he can only insist in a personal action against the executor, for payment out of the testator's effects. A special legacy, i. e. of a particular debt due to the deceased, or of a particular subject belonging to him, is of the nature of an affligation, by which the property of the special debt or subject vests, upon the testator's death, in the legatee, who can therefore directly sue the debtor or possessor: Yet as no legacy can be claimed till the debts are paid, the executor must be cited in such process, that it may be known, whether there are free effects sufficient for answering the legacy. Where there is not enough for payment of all the legacies, each of the general legatees must suffer a proportional abatement: But a special legatee gets his legacy entire, though there should be nothing over for payment of the rest; and, on the contrary, he has no claim, if the debt or subject bequeathed should perish, whatever the extent of the free executry may be.
5. Minors, after puberty, can test without their curators, wives without their husbands, and persons interdicted without their interdictors: but ballards cannot test, except in the cases afterwards set forth, No clxxii. 3. As a certain share of the goods, falling under the communion that is consequent on marriage, belongs, upon the husband's decease, to his widow, jure relicte, and a certain share to the children, called the legitime, portion-natural, or bairns part of gear; one who has a wife or children, though he be the absolute administrator of all these goods during his life, and consequently may alien them by a deed inter vivos, in liege poullie, even gratuitously, if no fraudulent intention to disappoint the wife or children shall appear, yet cannot impair their shares gratuitously on death-bed; nor can he dispose of his moveables to their prejudice by testament, though it should be made in liege poullie; since testaments do not operate till the death of the testator, at which period the division of the goods in communion have their full effect in favour of the widow and children.
6. If a person deceased leaves a widow, but no child, his testament, or, in other words, the goods in communion, divide in two: one half goes to the widow; the other is the dead's part, i. e. the absolute property of the deceased, on which he can test, and which falls to his next of kin, if he dies intestate. Where he leaves children, one or more, but no widow, the children get one half as their legitime: the other half is the dead's part; which falls also to the children, if the father has not tested upon it. If he leaves both widow and children, the division is tripartite: the wife takes one third by herself; another falls, as legitime, to the children equally among them, or even to an only child, though he should succeed to the heritage; the remaining third is the dead's part. Where the wife predeceases without children, one half is retained by the husband, the other falls to her next of kin: Where she leaves children, the division ought also to be bipartite, by the common
rules of society, since no legitime is truly due on a mother's death: yet it is in practice tripartite; two thirds remain with the surviving father, as if one third were due to him proprio nomine, and another as administrator of the legitime for his children; the remaining third, being the wife's share, goes to her children, whether of that or any former marriage; for they are all equally her next of kin.
7. Before a testament can be divided, the debts owing by the deceased are to be deducted; for all executry must be free. As the husband has the full power of burdening the goods in communion, his debts affect the whole, and so lessen the legitime and the share of the relict, as well as the dead's part. His funeral charges, and the mournings and alimony due to the widow, are considered as his proper debts; but the legacies, or other gratuitous rights granted by him on death-bed, affect only the dead's part. Bonds bearing interest, due by the deceased, cannot diminish the relict's share, because such bonds, when due to the deceased, do not increase it. The funeral charges of the wife predeceasing, fall wholly on her executors who have right to her share. Where the deceased leaves no family, neither husband, wife, nor child, the testament suffers no division, but all is the dead's part.
8. The whole issue of the husband, not only by that marriage which was dissolved by his death, but by any former marriage, has an equal interest in the legitime; otherwise the children of the first marriage would be cut out, as they could not claim the legitime during their father's life. But no legitime is due, (1.) Upon the death of a mother. (2.) Neither is it due to grandchildren, upon the death of a grandfather. Nor, (3.) To children forisfamiliarized, i. e. to such as, by having renounced the legitime, are no longer considered as in familia, and so are excluded from any farther share of the moveable estate than they have already received.
9. As the right of legitime is strongly founded in nature, the renunciation of it is not to be inferred by implication. Renunciation by a child of his claim of legitime has the same effect as his death, in favour of the other children intitled thereto; and consequently the share of the renouncer divides among the rest; but he does not thereby lose his right to the dead's part, if he does not also renounce his share in the father's executry. Nay, his renunciation of the legitime, where he is the only younger child, has the effect to convert the whole subject thereof into dead's part, which will therefore fall to the renouncer himself as next of kin, if the heir be not willing to collate the heritage with him. Yet it has been found that the renunciation of the only younger child made the whole legitime accrue to the heir without collation.
10. For preserving an equality among all the children who continue intitled to the legitime, we have adopted the Roman doctrine of collatio bonorum; where, by the child, who has got a provision from his father, is obliged to collate it with the others, and impute it towards his own share of the legitime; but if from the deed of provision, the father shall appear to have intended it as a precipuum to the child, collation is excluded. A child is not bound to collate an heritable subject provided to him, because the legitime is not impaired by such provision. As this collation takes place only in questions among children who are intitled to
the legitime, the relief is not bound to collate donations given her by her husband, in order to increase the legitime; and on the other part, the children are not obliged to collate their provisions, in order to increase her share.
11. As an heir in heritage must complete his titles by entry, so an executor is not vested in the right of the moveable estate of the deceased without confirmation. Confirmation is a sentence of the commissary or bishop's court, empowering an executor, one or more, upon making inventory of the moveables pertaining to the deceased, to recover, possess, and administer them, either in behalf of themselves, or of others interested therein. Testaments must be confirmed in the commissariat where the deceased had his principal dwelling house at his death. If he had no fixed residence, or died in a foreign country, the confirmation must be at Edinburgh, as the commune forum; but if he went abroad with an intention to return, the commissariat within which he resided, before he left Scotland, is the only proper court.
12. Confirmation proceeds upon an edict, which is affixed on the door of the parish-church where the deceased dwelt, and serves to intimate to all concerned the day of confirmation, which must be nine days at least after publishing the edict. In a competition for the office of executor, the commissary prefers, primo loco, the person named to it by the deceased himself, whose nomination he ratifies or confirms, without any previous decreniture: this is called the confirmation of a testamentary. In default of an executor named by the deceased, universal dispones are by the present practice preferred; after them, the next of kin; then the relief; then creditors; and, lastly, special legatees. All these must be deemed executors, by a sentence called a decree-dative; and if afterwards they incline to confirm, the commissary authorises them to administer, upon their making inventory, and giving security to make the subject thereof forthcoming to all having interest; which is called the confirmation of a testament-dative.
13. A creditor, whose debtor's testament is already confirmed, may sue the executor, who holds the office for all concerned, to make payment of his debt. Where there is no confirmation, he himself may apply for the office, and confirm as executor-creditor; which intitles him to sue for and receive the subject confirmed, for his own payment: and where one applies for a confirmation as executor-creditor, every co-creditor may apply to be conjoined with him in the office. As this kind of confirmation is simply a form of diligence, creditors are exempted from the necessity of confirming more than the amount of their debts.
14. A creditor, whose debt has not been constituted or his claim not closed by decree, during the life of his debtor, has no title to demand directly the office of executor qua creditor: but he may charge the next of kin, who stands off, to confirm, who must either renounce within twenty days after the charge, or be liable for the debt; and if the next of kin renounces, the pursuer may constitute his debt, and obtain a decree cognitionis causa, against the hereditas jacens of the moveables, upon which he may confirm as executor-creditor to the deceased. Where one is creditor, not to the deceased, but to his next of kin who stands off from
confirming, he may affect the moveables of the deceased, by obtaining himself deemed executor-dative to the deceased, as if he were creditor to him, and not to his next of kin.
15. Where an executor has either omitted to give up Confirmation of any of the effects belonging to the deceased in inventory, or has estimated them below their just value, there is place for a new confirmation, ad omnia, vel male appretiata, at the suit of any having interest; and if it appears that he has not omitted or undervalued any subject dehose, the commissary will ordain the subjects omitted, or the difference between the estimations in the principal testament and the true values, to be added thereto; but if dole shall be presumed, the whole subject of the testament ad omnia vel male appretiata, will be carried to him who confirms it, to the exclusion of the executor in the principal testament.
16. The legitime and relief's share, because they are Legitime, rights arising ex lege, operate ipso jure, upon the father's death, in favour of the relief and children; and consequently pass from them, though they should die before confirmation, to their next of kin: whereas the dead's part, which falls to the children or other next of kin in the way of succession, remains, if they should die before confirming, in bonis of the first deceased; and so does not descend to their next of kin, but may be confirmed by the person who, at the time of confirmation, is the next of kin to the first deceased. Special assignations, though neither intimated nor made public during the life of the grantor, carry to the assignee the full right of the subjects assigned, without confirmation. Special legacies are really assignations, and so fall under this rule. The next of kin, by the bare possession of the ipsa corpora of moveables, acquires the property thereof without confirmation, and transmits it to his executors.
17. The confirmation of any one subject by the next of kin, as it proves his right of blood, has been adjudged to carry the whole executory out of the testament of the deceased, even what was omitted, and to transmit all to his own executors. The confirmation of a stranger, who is executor nominated, as it is merely a trust for the next of kin, has the effect to establish the right of the next of kin to the subjects confirmed, in the same manner as if himself had confirmed them.
18. Executry, though it carries a certain degree of representation of the deceased, is properly an office: how far executors therefore are not subjected to the debts due by the deceased, beyond the value of the inventory; but, at the same time, they are liable in diligence for making the inventory effectual to all having interest. An executor-creditor who confirms more than his debt amounts to, is liable in diligence for what he confirms. Executors are not liable in interest, even upon such bonds recovered by them as carried interest to the deceased, because their office obliges them to retain the sums they have made effectual, in order to a distribution thereof among all having interest. This holds though they should again lend out the money upon interest, as they do it at their own risk.
19. There are certain debts of the deceased called privileged debts, which were always preferable to every other. Under that name are comprehended, medicines furnished to the deceased on deathbed, physicians fees, and
during
during that period, funeral charges, and the rent of his house, and his servants wages for the year or term current at his death. These the executors are in safety to pay on demand. All the other creditors, who either obtain themselves confirmed, or who cite the executor already confirmed, within six months after their debtor's death, are preferred, pari passu, with those who have done more timely diligence; and therefore no executor can either retain for his own debt, or pay a testamentary debt, so as to exclude any creditor, who shall use diligence within the six months, from the benefit of the pari passu preference; neither can a decree for payment of debt be obtained, in that period, against an executor, because, till that term be elapsed, it cannot be known how many creditors may be intitled to the fund in his hands. If no diligence be used within the six months, the executor may retain for his own debt, and pay the residue primo venienti. Such creditors of the deceased as have used diligence within a year after their debtor's death, are preferable on the subject of his testament to the creditors of his next of kin.
20. The only passive title in moveables is vicious intromission; which may be defined, an unwarrantable intermeddling with the moveable estate of a person deceased, without the order of law. This is not confined, as the passive titles in heritage are, to the persons interested in the succession, but strikes against all intromitters whatever. Where an executor confirmed intromits with more than he has confirmed, he incurs a passive title; fraud being in the common case presumed from his not giving up in inventory the full subject intermeddled with. Vicious intromission is also presumed, where the repositories of a dying person are not sealed up, as soon as he becomes incapable of sense, by his nearest relations; or, if he dies in a house not his own, they must be sealed by the master of such house, and the keys delivered to the judge-ordinary, to be kept by him, for the benefit of all having interest.
21. The passive title of vicious intromission does not take place where there is any probable title or circumstance that takes off the presumption of fraud. In consequence of this rule, necessary intromission, or cessodia causa, by the wife or children, who only continue the possession of the deceased, in order to preserve his goods for the benefit of all concerned, infers no passive title. And, upon the same principle, an intromitter, by confirming himself executor, and thereby subjecting himself to account, before action be brought against him on the passive titles, purges the vitiosity of his prior intromission; and where the intromitter is one who is interested in the succession, e. g. next of kin, his confirmation, at any time within a year from the death of the deceased, will exclude the passive title, notwithstanding a prior citation. As this passive title was intended only for the security of creditors, it cannot be sued upon by legatees; and since it arises ex delicto, it cannot be pleaded against the heir of the intromitter. As in delicts, any one of many delinquents may be subjected to the whole punishment, so any one of many intromitters may be sued in solidum for the pursuer's debt, without calling the rest; but the intromitter who pays, has an action of relief against the others for their share of it. If the intromitters are sued jointly, they
are liable, not pro rata of their several intromissions, but pro viris.
28. The whole of a debtor's estate is subjected to the payment of his debts; and therefore, both his heirs and executors are liable for them, in a question with creditors: but as succession is by law divided into the heritable and the moveable estate, each of these ought, in a question between the several successors, to bear the burdens which naturally affect it. Action of relief is accordingly competent to the heir who has paid a moveable debt, against the executor; and vice versa. This relief is not cut off by the deceased's having disposed either his land-estate or his moveables, with the burden of his whole debts; for such burden is not to be construed as an alteration of the legal succession, but merely as a farther security to creditors, unless the contrary shall be presumed from the special style of the disposition.
By our ancient practice, feudal grants taken to the vassal, and to a special order of heirs, without settling the last termination upon heirs whatsoever, returned to the superior, upon failure of the special heirs therein contained: but now that reus are become patrimonial rights, the superior is, by the general opinion, held to be fully divested by such grant, and the right descends to the vassal's heirs at law. And even where a vassal dies without leaving any heir who can prove the remotest propinquity to him, it is not the superior, as the old law stood, but the king, who succeeds as last heir, both in the heritable and moveable estate of the deceased, in consequence of the rule, Quod nullus est, cedit domino Regi.
2. If the lands, to which the king succeeds, be holden immediately of himself, the property is consolidated with the superiority, as if resignation had been made in the sovereign's hands. If they are holden of a subject, the king, who cannot be vassal to his own subject, names a donatory; who, to complete his title, must obtain a decree of declarator; and thereafter he is presented to the superior, by letters of presentation from the king under the quarter-seal, in which the superior is charged to enter the donatory. The whole estate of the deceased is, in this case, subjected to his debts, and to the widow's legal provisions. Neither the king nor his donatory is liable beyond the value of the succession. A person who has no heir to succeed to him, cannot alien his heritage in litta, to the prejudice of the king, who is intitled to set aside such deed, in the character of ultimus heres.
3. A bastard can have no legal heirs, except those of his own body; since there is no succession but by the father, and a bastard has no certain father. The king therefore succeeds to him, failing his lawful issue, as last heir. Though the bastard, as absolute proprietor of his own estate, can dispose of his heritage in lege poussa, and of his moveables by any deed inter vivos; yet he is disabled, ex defectu natalium, from bequeathing by testament, without letters of legitimation from the sovereign. If the bastard has lawful children, he may test without such letters, and name tutors and curators to his issue. Letters of legitimation, let their clauses be ever so strong, cannot enable the
bastard to succeed to his natural father, to the exclusion of lawful heirs.
4. The legal rights of succession, being founded in marriage, can be claimed only by those who are born in lawful marriage; the issue therefore of an unlawful marriage are incapable of succession. A bastard is excluded, (1.) From his father's succession; because law knows no father who is not marked out by marriage. (2.) From all heritable succession, whether by the father or mother; because he cannot be pronounced lawful heir by the inquest, in terms of the brief. And, (3.) From the moveable succession of his mother; for though the mother be known, the bastard is not her lawful child, and legitimacy is implied in all succession conferred by law. A bastard, though he cannot succeed jure sanguinis, may succeed by destination, where he is specially called to the succession by an entail or testament.
5. Certain persons, though born in lawful marriage, are incapable of succession. Aliens are, from their allegiance to a foreign prince, incapable of succeeding in feudal rights, without naturalization. Children born in a foreign state, whose fathers were natural born subjects, and not attainted, are held to be natural born subjects. Persons educated in, or professing, the Popish religion, if they shall neglect, upon their attaining the age of 15, to renounce its doctrines by a signed declaration, cannot succeed in heritage; but must give place to the next Protestant heir, who will hold the estate irredeemably, if the Popish heir does not, within ten years after incurring the irritancy, sign the formula prescribed by the statute 1700, c. 3.
HITHERTO of Persons and Rights, the two first objects of law: Actions are its third object, whereby persons make their rights effectual.
An action may be defined, A demand regularly made and insisted in, before the judge competent, for the attaining or recovering of a right; and it suffers several divisions, according to the different natures of the rights pursued upon.
2. Actions are either real or personal. A real action is that which arises from a right in the thing itself, and which therefore may be directed against all possessors of that thing: thus, an action for the recovery, even of a moveable subject, when founded on a jus in re, is in the proper acceptance real; but real actions are, in vulgar speech, confined to such as are directed against heritable subjects. A personal action is founded only on an obligation undertaken for the performance of some fact, or the delivery of some subject; and therefore can be carried on against no other than the person obliged, or his heirs.
3. Actions, again, are either ordinary or rescissory. All actions are, in the sense of this division, ordinary, which are not rescissory. Rescissory actions are divided, (1.) Into actions of proper improbation. (2.)
Actions of reduction improbation. (3.) Actions of simple reduction. Proper improbations, which are brought for declaring writings false or forged, are noticed below, No clxxxvi. 32. Reduction-improbation is an action, whereby a person who may be hurt or affected by a writing, insists for producing or exhibiting it in court, in order to have it set aside, or its effect ascertained, under the certification that the writing, if not produced, shall be declared false and forged. This certification is a fiction of law, introduced that the production of writings may be the more effectually forced, and therefore it operates only in favour of the pursuer. Because the summons in this action proceeds on alleged grounds of falsehood, his majesty's advocate, who is the public prosecutor of crimes, must concur in it.
4. As the certification in this process draws after it so heavy consequences, two terms are assigned to the defenders for production. After the second term is elapsed, intimation must be made judicially to the defender, to satisfy the production within ten days; and till these are expired, no certification can be pronounced. Certification cannot pass against deeds recorded in the books of session, if the defender shall, before the second term, offer a condescendence of the dates of their registration, unless falsehood be objected: in which case, the original must be brought from the record to the court. But an extract from the inferior court is no bar to certification; the principal writing must be laid before the court of session on a proper warrant.
5. In an action of simple reduction the certification is only temporary, declaring the writings called for reduction null, until they be produced; so that they recover their full force after production, even against the pursuer himself; for which reason, that process is now seldom used. Because its certification is not so severe as in reduction-improbation, there is but one term assigned to the defender for producing the deeds called for.
6. The most usual grounds of reduction of writings are, the want of the requisite solemnities; that the grantor was minor, or interdicted, or inhibited; or that he signed the deed on death-bed, or was compelled or frightened into it, or was circumvented; or that he granted it in prejudice of his lawful creditors.
7. In reductions on the head of force, or fear, or fraud and circumvention, the pursuer must libel the particular circumstances from which his allegation is to be proved. Reduction is not competent upon every degree of force or fear; it must be such as would shake a man of constancy and resolution. Neither is it competent, on that fear which arises from the just authority of husbands or parents over their wives or children, nor upon the fear arising from the regular execution of lawful diligence by caption, provided the deeds granted under that fear relate to the ground of debt contained in the diligence; but if they have no relation to that debt, they are reducible ex metu.
8. Alienations granted by debtors after contracting of lawful debts, in favour of conjunct or confident persons, without just and necessary causes, and without a just price really paid, are, by the act 1621, declared to be null. One is deemed a prior creditor, whose ground of debt existed before the right granted by
by
by the debtor; though the written voucher of the debt should bear a date posterior to it. Persons are accounted conjunct, whose relation to the granter is so near, as to bar them from judging in his cause. Confident persons are those who appear to be in the granter's confidence, by being employed in his affairs, or about his person; as a doer, steward, or domestic servant.
9. Rights, though gratuitous, are not reducible, if the granter had, at the date thereof, a sufficient fund for the payment of his creditors. Provisions to children are, in the judgment of law, gratuitous; so that their effect, in a question with creditors, depends on the solvency of the granter: but settlements to wives, either in marriage-contracts, or even after marriage, are onerous, in so far as they are rational; and consequently are not reducible, even though the granter was insolvent. This rule holds also in rational tolers contracted to husbands: But it must, in all cases, be qualified with this limitation, if the insolvency of the granter was not publicly known; for if it was, fraud is presumed in the receiver of the right, by contracting with the bankrupt.
10. The receiver of the deed, if he be a conjunct or confident person, must instruct or support the onerous cause of his right, not merely by his own oath, but by some circumstances or adminicles. But where a right is granted to a stranger, the narrative of it expressing an onerous cause, is sufficient per se to secure it against reduction.
11. All voluntary payments or rights made by a bankrupt to one creditor, to disappoint the more timeous diligence of another, are reducible at the instance of that creditor who has used the prior diligence. A creditor, though his diligence be but begun by citation, may insist in a reduction of all posterior voluntary rights granted to his prejudice; but the creditor who neglects to complete his begun diligence within a reasonable time, is not intitled to reduce any right granted by the debtor, after the time that the diligence is considered as abandoned.
12. A prohibited alienation, when conveyed by the receiver to another who is not privy to the fraud, subsists in the person of the bona fide purchaser. In the case of moveable rights, this nullity is receivable by exception; but it must be declared by reduction, where the right is heritable.
13. By act 1696, c. 5, all alienations by a bankrupt, within 60 days before his bankruptcy, to one creditor in preference to another, are reducible, at the instance even of such co-creditors as had not used the least step of diligence. A bankrupt is there described by the following characters; diligence used against him by horning and caption; and insolvency, joined either with imprisonment, retiring to the sanctuary, absconding, or forcibly defending himself from diligence. It is sufficient that a caption is raised against the debtor, though it be not executed, provided he has retired to shun it. And by the late bankrupt statute 23d Geo. III. it is declared, that in all actions and questions arising upon the construction and effect of the act 1696; when a debtor is out of Scotland, or not liable to be imprisoned by reason of privilege or personal protection, a charge of horning executed against him, together with either an arrest-
ment of any of his personal effects not loosed or discharged within fifteen days, or a poinding executed of any of his moveables, or a decree of adjudication of any part of his heritable estate, or sequestration by the act of a proper court, of all or any part of his estate or effects, heritable or moveable, for payment of debt, shall, when joined with insolvency, be held as sufficient proof of notour bankruptcy; and from and after the last step of such diligence, the said debtor, if insolvent, shall be held bankrupt. It is provided (by said act 1696), that all heritable bonds or rights on which seisin may follow, shall be reckoned, in a question with the granter's other creditors upon this act, to be of the date of the seisin following thereon. But this act was found to relate only to securities for former debts, and not to nova debita.
14. Actions are divided into rei persecutorie, and penales. By the first, the pursuer insists barely to recover the subject that is his, or the debt due to him; and this includes the damage sustained; for one is as truly a sufferer in his patrimonial interest by that damage, as by the loss of the subject itself. In penal actions, which always arise ex delicto, something is also demanded by way of penalty.
15. Actions of spulzie, ejection, and intrusion, are penal. An action of spulzie is competent to one dispossessed of a moveable subject violently, or without order of law, against the person dispossessing: not only for being restored to the possession of the subject, if extant, or for the value, if it be destroyed, but also for the violent profits, in case the action be brought within three years from the spoliation. Ejection and intrusion are, in heritable subjects, what spulzie is in moveables. The difference between the two first is, that in ejection, violence is used; whereas the intruder enters into the void possession, without either a title from the proprietor, or the warrant of a judge. The actions arising from all the three are of the same general nature.
16. The action of contravention of law-borrows is also penal. It proceeds on letters of law-borrows, (from borgh, a cautioner), which contain a warrant to charge the party complained upon, that he may give security not to hurt the complainer in his person, family, or estate. These letters do not require the previous citation of the party complained upon, because the caution which the law requires is only for doing what is every man's duty; but, before the letters are executed against him, the complainer must make oath that he dreads bodily harm from him. The penalty of contravention is ascertained to a special sum, according to the offender's quality; the half to be applied to the isk, and the half to the complainer. Contravention is not incurred by the uttering of reproachful words, where they are not accompanied, either with acts of violence, or at least a real injury; and as the action is penal, it is elided by any probable ground of excuse.
17. Penalties are the consequences of delict, or transgression; and as no heir ought to be accountable for the delict of his ancestor, farther than the injured person has really suffered by it, penal actions die with the delinquent, and are not transmissible against heirs. Yet the action, if it has been commenced and litigated in the delinquent's lifetime, may be continued
continued
nued against the heir, though the delinquent should die during the dependence. Some actions are rei per-secutoria on the part of the pursuer, when he insists for simple restitution; which yet may be penal in respect of the defender: e.g. the action on the passive title of vicious intromission, by which the pursuer frequently recovers the debt due to him by the deceased, tho' it should exceed the value of the goods intermeddled with by the defenders.
18. The most celebrated division of actions in our law is into petitory, possessory, and declaratory. Petitory actions are those, where something is demanded from the defender, in consequence of a right of property, or of credit in the pursuer: Thus, actions for restitution of moveables, actions of poinding, of forthcoming, and indeed all personal actions upon contracts or quasi-contracts, are petitory. Possessory actions are those which are founded, either upon possession alone, as spulzies; or upon possession joined with another title, as removing; and they are competent either for getting into possession, for holding it, or for recovering it; analogous to the interdicts of the Roman law, quorum bonorum, ut possidetis, and unde vi.
16. An action of molestation is a possessory action, competent to the proprietor of a land-estate, against those who disturb his possession. It is chiefly used in questions of commonty, or of controverted marches. Where a declarator of property is conjoined with a process of molestation, the session alone is competent to the action. Actions on briefs of perambulation, have the same tendency with molestations, viz. the settling of marches between contemniuous lands.
20. The actions of mails and duties is sometimes petitory, and sometimes possessory. In either case, it is directed against the tenants and natural possessors of land-estates, for payment to the pursuer of the rents remaining due by them for past crops, and of the full rent for the future. It is competent, not only to a proprietor whose right is perfected by seisin, but to a simple disponee, for a disposition of lands includes a right to the mails and duties; and consequently to an adjudger, for an adjudication is a judicial disposition.
In the petitory action, the pursuer, since he founds upon right, not possession, must make the proprietor, from whom the tenants derive their right, party to the suit; and he must support his claim by titles of property or diligences, preferable to those in the person of his competitor.
In the possessory, the pursuer who libels that he, his ancestors, or authors, have been seven years in possession, and that therefore he has the benefit of a possessory judgment, need produce no other title than a seisin, which is a title sufficient to make the possession of heritage lawful; and it is enough, if he calls the natural possessors, though he should neglect the proprietor. A possessory judgment founded on seven years possession, in consequence either of a seisin or a tack, has this effect, that though one should claim under a title preferable to that of the possessor, he cannot compete with him in the possession, till in a formal process of reduction he shall obtain the possessor's title declared void.
21. A declaratory action is that, in which some right is craved to be declared in favour of the pursuer, but nothing sought to be paid or performed by the defender, such as declarators of marriage, of irritancy, of No 178.
expiry of the legal reversion, &c. Under this class may be also comprehended rescissory actions, which, without any personal conclusion against the defender, tend simply to set aside the rights or writings libelled, in consequence of which a contrary right or immunity arises to the pursuer. Decrees upon actions that are properly declaratory confer no new right; they only declare what was the pursuer's right before, and so have a retrospect to the period at which that right first commenced. Declarators, because they have no personal conclusion against the defender, may be pursued against an apparent heir without a previous charge given him to enter to his ancestor; unless where special circumstances require a charge.
22. An action for proving the tenor, whereby a writing, which is destroyed or amissing, is endeavoured to be revived, is in effect declaratory. In obligations that are extinguishable barely by the debtor's retiring or cancelling them, the pursuer, before a proof of the tenor is admitted, must condescend on such a casus amissionis, or accident by which the writing was destroyed, as shows it was lost when in the creditor's possession; otherwise bonds that have been cancelled by the debtor on payment, might be reared up as still subsisting against him: But in writings which require contrary deeds to extinguish their effect, as assignations, dispositions, charters, &c. it is sufficient to libel that they were lost, even casu fortuito.
23. Regularly, no deed can be revived by this action, without some adminicle in writing, referring to that in writing, which is libelled; for no written obligation ought to be raised up barely on the testimony of witnesses. If these adminicles afford sufficient conviction that the deed libelled did once exist, the tenor is admitted to be proved by witnesses, who must depose, either that they were present at signing the deed, or that they afterwards saw it duly subscribed. Where the relative writings contain all the substantial clauses of that which is lost, the tenor is sometimes sustained without witnesses. In a writing which is libelled to have contained uncommon clauses, all these must appear by the adminicles. Actions of proving the tenor are, on account of their importance, appropriated to the court of session; and, by the old form, the testimony of the witnesses could not be received but in presence of all the judges.
24. The action of double or multiple poinding may be also reckoned declaratory. It is competent to a debtor, who is distressed, or threatened with distress, by two or more persons claiming right to the debt, and who therefore brings the several claimants into the field, in order to debate and settle their several preferences, that so he may pay securely to him whole right shall be found preferable. This action is daily pursued by an arrestee, in the case of several arrests used in his hands for the same debt; or by tenants in the case of several adjudgers, all of whom claim right to the same rents. In these competitions, any of the competitors may bring an action of multiple poinding in name of the tenants, or other debtors, without their consent, or even though they should disclaim the process; since the law has introduced it as the proper remedy for getting such competitions determined: And while the subject in controversy continues in medio, any third person who conceives he has a right to it, may, though
though he should not be cited as a defender, produce his titles, as if he were an original party to the suit, and will be admitted for his interest in the competition. By the foresaid bankrupt statute, however, it is competent, in the case of a forthcoming or multiple-pointing raised on an arrestment used within thirty days prior, or four kalendar months subsequent to a bankruptcy, for any other creditor producing his interest, and making his claim, in the process at any time before the expiration of the four months, to be ranked in the same manner as if he had used the form of arrestment.
25. Certain actions may be called accessory, because they are merely preparatory or subservient to other actions. Thus, exhibitions ad deliberandum, at the instance of an heir against the creditors or custodiers of his ancestor's writings, are intended only to pave the way for future process. An action of transference is also of this sort, whereby an action, during the pendency of which the defender happens to die, is craved to be transferred against his representative, in the same condition in which it stood formerly. Upon the pursuer's death his heir may insist in the cause against the defender, upon producing either a retour or a confirmed testament, according as the subject is heritable or moveable. Transferences being but incidental to other actions, can be pronounced by that inferior judge alone before whom the principal cause depended; but where the representatives of the deceased live in another territory, it is the supreme court must transfer. Obligations may now be registered summarily after the creditor's death; which before was not admitted, without a separate process of registration, to which the grantor was necessarily to be made a party.
26. A process of wakening is likewise accessory. An action is said to sleep, when it lies over not insisted in for a year, in which case its effect is suspended; but even then it may, at any time within the years of prescription, be revived or wakened by a summons, in which the pursuer recites the last step of the process, and concludes that it may be again carried on as if it had not been discontinued. An action that stands upon any of the inner-house rolls cannot sleep; nor an action in which decree is pronounced, because it has got its full completion: Consequently the decree may be extracted after the year, without the necessity of a wakening.
27. An action of transumpt falls under the same class. It is competent to those who have a partial interest in writings that are not in their own custody, against the possessors thereof, for exhibiting them, that they may be transumed for their behoof. Tho' the ordinary title in this process be an obligation by the defender to grant transumpt to the pursuer, it is sufficient if the pursuer can show that he has an interest in the writings; but in this case, he must transume them on his own charges. Actions of transumpt may be pursued before any judge-ordinary. After the writings to be transumed are exhibited, full duplicates are made out, collated, and signed, by one of the clerks of court, which are called transumptis, and are as effectual as an extract from the register.
28. Actions proceeded anciently upon brieves issuing from the chancery, directed to the justiciary or judge-ordinary, who tried the matter by a jury, upon whose verdict judgment was pronounced: And to this
day we retain certain brieves, as of inquest, terce, idiotry, tutory, perambulation, and perhaps two or three others: But summonses were, immediately upon the institution of the college of justice, introduced in the place of brieves. A summons, when applied to actions pursued before the session, is a writ in the king's name, issuing from his signet upon the pursuer's complaint, authorizing messengers to cite the defender to appear before the court and make his defences; with certification, if he fail to appear, that decree will be pronounced against him in terms of the certification of the summons.
29. The days indulged by law to a defender, between his citation and appearance, to prepare for his defence, are called induciae legales. If he is within the kingdom, 21 and 6 days, for the first and second diets of appearance, must be allowed him for that purpose; and if out of it, 60 and 15. Defenders residing in Orkney or Zetland must be cited on 40 days. In certain summonses which are privileged, the induciae are shortened: Spulzies and ejections proceed on 15 days; wakenings and transferences, being but incidental, on six; (see the list of privileged summonses, in act of federunt June 29th 1672.) A summons must be executed, i. e. served against the defender, so as the last diet of appearance may be within a year after the date of the summons; and it must be called within a year after that diet, otherwise it falls for ever. Offence against the authority of the court, acts of malversation in office by any member of the college of justice, and acts of violence and oppression committed during the dependence of a suit by any of the parties, may be tried without a summons, by a summary complaint.
30. Though the Romans acknowledged a concourse of actions in their proceedings, it is not known in the law of Scotland. Therefore, where an action is in part penal, e. g. a removing, spulzie, &c. a pursuer who restricts his demand to, and obtains a decree merely for, restitution, cannot thereafter bring a new process for the violent profits. Yet the same fact may be the foundation both of a criminal and civil action, because these two are intended for different purposes; the one for satisfying the public justice, the other for indemnifying the private party: And though the defender should be absolved in the criminal trial, for want of evidence, the party injured may bring an action ad civilem effectum, in which he is intitled to refer the libel to the defender's oath.
31. One libel or summons may contain different conclusions on the same ground of right, rescissory, declaratory, petitory, &c. if they be not repugnant to each other: Nay, though different sums be due to one, upon distinct grounds of debt, or even by different debtors, the creditor may insist against them all in the same summons.
32. Defences are pleas offered by a defender for excluding an action. They are either dilatory, which do not enter into the cause itself, and so can only procure an absolvitor from the lis pendens: Or peremptory, which entirely cut off the pursuer's right of action. The first, because they relate to the forms of proceedings, must be offered in limine judicii, and all of them at once. But peremptory defences may be proposed at any time before sentence. By a late act of federunt,
however (1787), all defences, both dilatory and pre-emptory, so far as they are known, must be proposed at returning the summons, under a penalty; and the same enactment extends to the cases of suspensions and advocations. The writings to be founded upon by the parties also must be produced: the intention of the court, in framing the act of sederunt, being to accelerate as much as possible the decision of causes.
33. A cause, after the parties had litigated it before the judge, was said by the Romans to be litiscontested. By litiscontestation a judicial contract is understood to be entered into by the litigants, by which the action is perpetuated against heirs, even when it arises ex delicto. By our law, litiscontestation is not formed till an act is extracted, admitting the libel or defences to proof.
All allegations by parties to a suit, must be supported by proper proof. Probation is either by writing, by the party's own oath, or by witnesses. In the case of allegations, which may be proved by either of the three ways, a proof is said to be admitted prout de jure; because, in such case, all the legal methods of probation are competent to the party; if the proof he brings by writing be lame, he may have recourse either to witnesses or to his adversary's oath; but, if he should first take himself to the proof by oath, he cannot thereafter use any other probation (for the reason assigned par. 3.); and, on the contrary, a pursuer who has brought a proof by witnesses, on an extracted act, is not allowed to recur to the oath of the defender. Single combat, as a sort of appeal to Providence, was, by our ancient law, admitted as evidence, in matters both civil and criminal. It was afterwards restricted to the case of such capital crimes where no other proof could be had; some traces of this blind method of trial remained even in the reign of James VI. who, by 1600, c. 12. might authorise duels on weighty occasions.
2. As obligations or deeds signed by the party himself, or his ancestors or authors, must be, of all evidence, the least liable to exception; therefore every debt or allegation may be proved by proper evidence in writing. The solemnities essential to probative deeds have been already explained, (no clxxxiv. 3. et seq.) Books of account kept by merchants, tradesmen, and other dealers in business, though not subscribed, are probative against him who keeps them; and, in case of furnishings by a shop keeper, such books, if they are regularly kept by him, supported by the testimony of a single witness, afford a semiplena probatio in his favour, which becomes full evidence by his own oath in supplement. Notarial instruments and executions by messengers bear full evidence, that the solemnities therein set forth were used, not to be invalidated otherwise than by a proof of falsehood; but they do not prove any other extrinsic facts therein averred, against third parties.
3. Regularly, no person's right can be proved by his own oath, nor taken away by that of his adversary; because these are the bare averments of parties in their own favour. But, where the matter in issue is referred by one of the parties to the oath of the other, such oath, though made in favour of the deponent himself, is decisive of the point; because the reference is a vir-
tual contract between the litigants, by which they are understood to put the issue of the cause upon what shall be deposed: and this contract is so strictly regarded, that the party who refers to the oath of the other cannot afterwards, in a civil action, plead upon any deed against the party deposing, inconsistent with his oath. To obviate the snares that may be laid for perjury, he, to whose oath of verity a point is referred, may refuse to depose, till his adversary swear that he can bring no other evidence in proof of his allegation.
4. A defender, though he cannot be compelled to swear to facts in a libel properly criminal; yet may, in trespasses, where the conclusion is limited to a fine, or to damages. In general, an oath of party cannot either hurt or benefit third parties; being, as to them, res inter alios acta.
5. An oath upon reference is sometimes qualified by special limitations restricting it. The qualities which are admitted by the judge as part of the oath, are called intrinsic; those which the judge rejects or separates from the oath, extrinsic. Where the quality makes a part of the allegation which is relevantly referred to oath, it is intrinsic. Thus, because a merchant, suing for furnishings after the three years, must, in order to make a relevancy, offer to prove by the defender's oath, not only the delivery of the goods, but that the price is still due; therefore, though the defender should acknowledge upon oath his having received the goods, yet, if he adds, that he paid the price, this last part being a denial that the debt subsists, is intrinsic, since it is truly the point referred to oath. Where the quality does not import an extinction of the debt, but barely a counter-claim, or mutua petitio, against the pursuer, it is held as extrinsic, and must be proved alioquin. Neither can a defender who in his oath admits the constitution of a debt, get off by admitting the quality of payment, where the payment ought by its nature to be vouched by written evidence.
6. Oaths of verity are sometimes referred by the judge to either party, ex officio; which, because they are not founded on any implied contract between the litigants, are not finally decisive, but may be traversed on proper evidence afterwards produced. These oaths are commonly put by the judge for supplying a lame or imperfect proof, and are therefore called oaths in supplement. (See par. 2.)
7. To prevent groundless allegations, oaths of calumny have been introduced, by which either party may demand his adversary's oath, that he believes the fact contained in his libel or defences to be just and true. As this is an oath, not of verity, but only of opinion, the party who puts it to his adversary does not renounce other probation; and therefore no party is bound to give an oath of calumny, on recent facts of his own, for such oath is really an oath of verity. These oaths have not been so frequent since the act of sederunt. Feb. 1. 1715, whereby any party, against whom a fact shall be alleged, is obliged, without making oath, to confess or deny it; and, in case of calumnious denial, is subjected to the expense that the other party has thereby incurred.
8. In all oaths, whether of verity or calumny, the citation carries, or at least implies, a certification, that if the party does not appear at the day assigned for deposing, he shall be held pro confesso; from a presumption
tion of his consciousness, that the fact upon which he declines to swear makes against him; but no party can be held pro confesso, if he be in the kingdom, without a previous personal citation used against him. Though an oath which resolves into a non memini, cannot be said to prove any point; yet where one so deposes upon a recent fact, to which he himself was privy, his oath is considered as a dissembling of the truth, and he is held pro confesso, as if he had refused to swear.
9. An oath in litem, is that which the judge refers to a pursuer, for ascertaining either the quantity or the value of goods which have been taken from him by the defender without order of law, or the extent of his damages. An oath in litem, as it is the affirmation of a party in his own behalf, is only allowed where there is proof that the other party has been engaged in some illegal act, or where the public policy has made it necessary, (see no clxxiii. 11.) This oath, as to the quantities, is not admitted, where there is a concurring testimony of witnesses brought in proof of it. When it is put as to the value of goods, it is only an oath of credulity: and therefore it has always been subject to the modification of the court.
10. The law of Scotland rejects the testimony of witnesses, (1.) In payment of any sum above L. 100 Scots, all which must be proved either scripto vel jura-mentis. (2.) In all gratuitous promises, though for the smallest trifle. (3.) In all contracts, where writing is either essential to their constitution, (see no clxxv. 2.) or where it is usually adhibited, as in the borrowing of money. And it is a general rule, subject to the restrictions mentioned in the next par. that no debt or right, once constituted by writing, can be taken away by witnesses.
11. On the other part, probation by witnesses is admitted to the extent of L. 100 Scots, in payments, nuncupative legacies, and verbal agreements which contain mutual obligations. And it is received to the highest extent, (1.) In all bargains which have known engagements naturally arising from them, concerning moveable goods. (2.) In facts performed in satisfaction, even of a written obligation, where such obligation binds the party precisely to the performance of them. (3.) In facts which with difficulty admit of a proof by writing, even though the effect of such proof should be the extinction of a written obligation, especially if the facts import fraud or violence; thus, a bond is reducible ex dolo, on a proof by witnesses. Lastly, all intromission by a creditor with the rents of his debtor's estate payable in grain, may be proved by witnesses; and even intromission with the silver-rent, where the creditor has entered into the total possession of the debtor's lands.
12. No person, whose near relation to another bars him from being a judge in his cause, can be admitted as a witness for him; but he may against him, except a wife or child, who cannot be compelled to give testimony against the husband or parent, ob reverentiam persone, et metum perjurii. Though the witness, whose propinquity to one of the parties is objected to, be as nearly related to the other, the objection stands good.
13. The testimony of infamous persons is rejected, i.e. persons who have been guilty of crimes that law declares to infer infamy, or who have been declared infamous by the sentence of a judge; but infamia falli
does not disqualify a witness. Pupils are inhabile witnesses; being, in the judgment of law, incapable of the impressions of an oath. And in general witnesses otherwise exceptionable may, where there is a penury of witnesses arising from the nature or circumstances of the fact, be received ex nota; that is, their testimony, though not quite free from suspicion, is to be conjoined with the other evidence, and to have such weight given it as the judge shall think it deserves.
14. All witnesses, before they are examined in the Pargation cause, are purged of partial counsel; that is, they must declare, that they have no interest in the suit, nor have given advice how to conduct it; that they have got neither bribe nor promise, nor have been influenced how to depose; and that they bear no enmity to either of the parties. These, because they are the points put to a witness before his making oath, are called initialia testimoni. Where a party can bring present proof of a witness's partial counsel, in any of the above particulars, he ought to offer it before the witness be sworn; but, because such objection, if it cannot be instantly verified, will be no bar to the examination, law allows the party in that case to protest for reprobator, before the witness is examined; i.e. that he may be afterwards allowed to bring evidence of his enmity, or other inability. Reprobator is competent even after sentence, where protestation is duly entered; but in that case, the party insisting must consign L. 100 Scots, which he forfeits if he succumb. This action must have the concurrence of the king's advocate, because the conclusion of it imports perjury; and for this reason, the witness must be made a party to it.
15. The interlocutory sentence or warrant, by which parties are authorized to bring their proof, is either by way of act, or of incident diligence. In an act, the lord ordinary who pronounces it is no longer judge in the process; but in an incident diligence, which is commonly granted upon special points, that do not exhaust the cause, the lord ordinary continues judge. If a witness does not appear at the day fixed by the warrant of citation, a second warrant is granted of the nature of a caption, containing a command to messengers to apprehend and bring him before the court. Where the party to whom a proof is granted, brings none within the term allowed by the warrant, an interlocutor is pronounced, circumducing the term, and precluding him from bringing evidence thereafter. Where evidence is brought, if it be upon an act, the lord ordinary on the acts, after the term for proving is elapsed, declares the proof concluded; and thereupon a state of the case is prepared by the ordinary on concluded causes, which must be judged by the whole lords; but if the proof be taken upon an incident diligence, the import of it may be determined by the lord ordinary in the cause.
16. Where facts do not admit a direct proof, presumptions are received as evidence which in many cases, make as convincing a proof as the direct. Presumptions are consequences deduced from facts known or proved, which infer the certainty, or at least a strong probability, of another fact to be proved. This kind of probation is therefore called artificial, because it requires a reasoning to infer the truth of the point in question, from the facts that already appear in proof. Presumptions are either, 1. juris et de jure; 2. juris; or, 3. boni
minis or iudicis. The first sort obtains, where statute or custom establishes the truth of any point upon a presumption; and it is so strong, that it rejects all proof that may be brought to elide it in special cases. Thus, the testimony of a witness, who forwardly offers himself without being cited, is, from a presumption of his partiality, rejected, let his character be ever so fair; and thus also, a minor, because he is by law presumed incapable of conducting his own affairs, is upon that presumption disabled from acting without the consent of his curators, though he should be known to behave with the greatest prudence. Many such presumptions are fixed by statute.
17. Presumptiones juris are those which our law-books or decisions have established, without founding any particular consequence upon them, or statuting super presumpto. Most of this kind are not proper presumptions inferred from positive facts, but are founded merely on the want of a contrary proof; thus, the legal presumptions for freedom, for life, for innocence, &c. are in effect so many negative propositions, that servitude, death, and guilt, are not to be presumed, without evidence brought by him who makes the allegation. All of them, whether they be of this sort, or proper presumptions, as they are only conjectures formed from what commonly happens, may be elided, not only by direct evidence, but by other conjectures, affording a stronger degree of probability to the contrary. Presumptiones hominis or iudicis, are those which arise daily from the circumstances of particular cases; the strength of which is to be weighed by the judge.
18. A filio juris differs from a presumption. Things are presumed, which are likely to be true; but a fiction of law assumes for truth what is either certainly false, or at least is as probably false as true. Thus an heir is feigned or considered in law as the same person with his ancestor. Fictions of law must, in their effects, be always limited to the special purposes of equity for which they were introduced; see an example, No clxxxiii. 3.
PROPERTY would be most uncertain, if debateable points might, after receiving a definitive judgement, be brought again in question, at the pleasure of either of the parties: every state has therefore fixed the character of final to certain sentences or decrees, which in the Roman law are called res iudicata, and which exclude all review or rehearing.
2. Decrees of the court of session, are either in foro contradictorio, where both parties have litigated the cause, or in absence of the defender. Decrees of the session in foro cannot, in the general case, be again brought under the review of the court, either on points which the parties neglected to plead before sentence (which we call competent and omitted), or upon points pleaded and found insufficient (proposed and repelled.) But decrees, though in foro, are reversible by the court, where either they labour under essential nullities; e. g. where they are ultra petita, or not conformable to their grounds and warrants, or founded on an error in calcul, &c.; or where the party against whom the decree is obtained has thereafter recovered
evidence sufficient to overturn it, of which he knew not before.
3. As parties might formerly reclaim against the sentences of the session, at any time before extracting the decree, no judgment was final till extracted; but now, a sentence of the inner-house, either not reclaimed against within six federunt days after its date, or adhered to upon a reclaiming bill, though it cannot receive execution till extracted, makes the judgment final as to the court of session. And, by an order of the house of lords, March 24. 1725, no appeal is to be received by them from sentences of the session, after five years from extracting the sentence; unless the person entitled to such appeal be minor, clothed with a husband, non compos mentis, imprisoned, or out of the kingdom. Sentences pronounced by the lord ordinary have the same effect, if not reclaimed against, as if they were pronounced in presence; and all petitions against the interlocutor of an ordinary must be preferred within eight federunt days after signing such interlocutor.
4. Decrees, in absence of the defender, have not the force of res iudicata as to him; for where the defender does not appear, he cannot be said to have subjected himself by the judicial contract which is implied in litiscontestation; a party therefore may be restored against these, upon paying to the other his costs in recovering them. The sentences of inferior courts may be reviewed by the court of session,—before decree, by advocacy,—and after decree, by suspension or reduction; which two last are also the methods of calling in question such decrees of the session itself, as can again be brought under the review of the court.
5. Reduction is the proper remedy, either where the decree has already received full execution by payment, or where it decrees nothing to be paid or performed, but simply declares a right in favour of the pursuer. Suspension is that form of law by which the effect of a sentence condemnatory, that has not yet received execution, is stayed or postponed till the cause be again considered. The first step towards suspension is a bill preferred to the lord ordinary on the bills. This bill, when the desire of it is granted, is a warrant for issuing letters of suspension which pass the signet; but if the presenter of the bill shall not, within 14 days after passing it, expedite the letters, execution may by act of federunt 1677 proceed on the sentence. In practice, however, it is usual for the charger to put up a protestation in the minute-book for production of the suspension, which may be expedited at any time before this is done; and if the suspender shall allow the protestation to be extracted, the suit falls. Suspensions of decrees in foro cannot pass, but by the whole lords in time of session, and by three in vacation time; but other decrees may be suspended by any one of the judges. By the late act of federunt (1787), in order to remedy the abuse of presenting a multiplicity of bills of suspension of the decrees of inferior judges in small causes which have passed in absence, it is declared, that all bills of suspension of decrees by inferior judges in absence of the defenders in causes under 12 l. Sterling value, shall be refused and remitted to the inferior judge if competent; the suspender, however, before being heard in the inferior court, reimbur-
Law of Scotland. 6. As suspension has the effect of staying the execution of the creditor's legal diligence, it cannot, in the general case, pass without caution given by the suspender to pay the debt, in the event it shall be found due. Where the suspender cannot, from his low or suspected circumstances, procure unquestionable security, the lords admit juratory caution, i. e. such as the suspender swears is the best he can offer; but the reasons of suspension are, in that case, to be considered with particular accuracy at passing the bill. Decrees in favour of the clergy, of universities, hospitals, or parish-schoolmasters, for their stipends, rents, or salaries, cannot be suspended, but upon production of discharges, or on consignation of the sums charged for. A charger, who thinks himself secure without a cautioner, and wants dispatch, may, where a suspension of his diligence is sought, apply to the court to get the reasons of suspension summarily discussed on the bill.
7. Though he, in whose favour the decree suspended is pronounced, be always called the charger, yet a decree may be suspended before a charge be given on it. Nay, suspension is competent even where there is no decree, for putting a stop to any illegal act whatsoever: thus, a building, or the exercise of a power which one assumes unwarrantably, is a proper subject of suspension. Letters of suspension are considered merely as a prohibitory diligence; so that the suspender, if he would turn provoker, must bring an action of reduction. If, upon discussing the letters of suspension, the reasons shall be sustained, a decree is pronounced, suspending the letters of diligence on which the charge was given simpliciter; which is called a decree of suspension, and takes off the effect of the decree suspended. If the reasons of suspension be repelled, the court find the letters of diligence orderly proceeded, i. e. regularly carried on; and they ordain them to be put to further execution.
8. Decrees are carried into execution, by diligence, either against the person or against the estate of the debtor. The first step of personal execution is by letters of horning, which pass by warrant of the court of session, on the decrees of magistrates of boroughs, sheriffs, admirals, and commissaries. If the debtor does not obey the will of the letters of horning within the days of the charge, the charger, after denouncing him rebel, and registering the horning, may apply for letters of caption, which contain a command, not only to messengers, but to magistrates, to apprehend and imprison the debtor. All messengers and magistrates, who refuse their assistance in executing the caption, are liable subsidiarie for the debt; and such subsidiary action is supported by the execution of the messenger employed by the creditor, expressing that they were charged to concur, and would not. Letters of caption contain an express warrant to the messenger, in case he cannot get access, to break open all doors and other lock-fast places.
9. Law secures peers, married women, and pupils, against personal execution by caption upon civil debts. Such commoners also as are elected to serve in parliament, are secured against personal execution by the privilege of parliament. No caption can be executed
against a debtor within the precincts of the king's palace of Holyroodhouse: but this privilege of sanctuary afforded no security to criminals, as that did which was, by the canon law, conferred on churches and religious houses. Where the personal presence of a debtor, under caption, is necessary in any of our supreme courts, the judges are empowered to grant him a protection, for such time as may be sufficient for his coming and going, not exceeding a month. Protection from diligence is also granted by the court of session under the late bankrupt statute, where it is applied for, with concurrence of the trustee, or a certain number of the creditors as the case may require.
10. After a debtor is imprisoned, he ought not to be indulged the benefit of the air, not even under a guard; for creditors have an interest, that their debtors be kept under close confinement, that, by the squalor carceris, they may be brought to pay their debt: and any magistrate or jailor, who shall suffer the prisoner to go abroad, without a proper attestation, upon oath, of the dangerous state of his health, is liable subsidiarie for the debt. Magistrates are in like manner liable, if they shall suffer a prisoner to escape through the insufficiency of their prison: but, if he shall escape under night, by the use of instruments, or by open force, or by any other accident which cannot be imputed to the magistrates or jailor, they are not chargeable with the debt; provided they shall have, immediately after his escape, made all possible search for him. A case lately occurred where a messenger having apprehended a person for a debt, upon letters of caption, delivered him over to the provost of the burgh, and took a receipt for him. The provost allowed him to remain at the inn all night, and afterwards allowed him what is called open gaol, by which he had access to the courthouse, under the same roof with the prison, where he transacted business. As the person at whose instance he was apprehended upon the caption, considered that the magistrates had not kept the debtor in prison as commanded by the letters, brought an action against them for the debt, although the debtor had not so much as attempted to make his escape. It was contended by the magistrates, that they were not liable, having only followed the usual practice of the burgh: but the court of session, considering the magistrates as principal keepers of the prison, and as such having no discretionary power, were of opinion, that the debtor had never been imprisoned in the eye of law, and therefore found the magistrates liable; and their judgment was affirmed upon appeal. Regularly, no prisoner for debt upon letters of caption, though he should have made payment, could be released without letters of suspension, containing a charge to the jailor to set him at liberty; because the creditor's discharge could not take off the penalty incurred by the debtor for contempt of the king's authority: but to save unnecessary expence to debtors in small debts, jailors are empowered to let go prisoners where the debt does not exceed 200 merks Scots, upon production of a discharge, in which the creditor consents to his release.
11. Our law, from a consideration of compassion, allows insolvent debtors to apply for a release from prison upon a cessio bonorum, i. e. upon their making over to the creditors all their estate real and personal. This must be insinuated for by way of action, to which all the creditors
creditors of the prisoner ought to be made parties. The prisoner must, in this action, which is cognizable only by the court of session, exhibit a particular inventory of his estate, and make oath that he has no other estate than is therein contained, and that he has made no conveyance of any part of it, since his imprisonment, to the hurt of his creditors. He must also make oath, whether he has granted any disposition of his effects before his imprisonment, and condescend on the persons to whom, and on the cause of granting it; that the court may judge, whether, by any collusive practice, he has forfeited his claim to liberty.
12. A fraudulent bankrupt is not allowed this privilege; nor a criminal who is liable in any assything or indemnification to the party injured or his executors, though the crime itself should be extinguished by a pardon. A disposition granted on a cessio bonorum is merely in further security to the creditors, not in satisfaction or in solutum of the debts. If, therefore, the debtor shall acquire any estate after his release, such estate may be attached by his creditors, as if there had been no cessio, except in so far as is necessary for his subsistence. Debtors, who are set free on a cessio bonorum, are obliged to wear a habit proper to dyours or bankrupts. The lords are prohibited to dispense with this mark of ignominy, unless, in the summons and process of cessio, it be libelled, sustained, and proved, that the bankruptcy proceeds from misfortune. And bankrupts are condemned to submit to the habit, even where no suspicion of fraud lies against them, if they have been dealers in an illicit trade.
13. Where a prisoner for debt declares upon oath, before the magistrate of the jurisdiction, that he has not wherewith to maintain himself, the magistrate may set him at liberty, if the creditor, in consequence of whose diligence he was imprisoned, does not aliment him within ten days after intimation made for that purpose. But the magistrate may, in such case, detain him in prison, if the creditor chuses to bear the burden of the aliment rather than release him. The statute authorising this release, which is usually called the act of grace, is limited to the case of prisoners for civil debts.
14. Decrees are executed against the moveable estate of the debtor by arrestment or poinding; and against his heritable estate, by inhibition, or adjudication. If one be condemned, in a removing or other process, to quit the possession of lands, and refuses, notwithstanding a charge, letters of ejection are granted of course, ordering the sheriff to eject him, and to enter the obtainer of the decree into possession. Where one opposes by violence the execution of a decree, or of any lawful diligence, which the civil magistrate is not able by himself and his officers to make good, the execution is enforced manu militari.
15. A decree arbitral, which is a sentence proceeding on a submission to arbiters, has some affinity with a judicial sentence, though in most respects the two differ. A submission is a contract entered into by two or more parties who have disputable rights or claims, whereby they refer their differences to the final determination of an arbiter or arbiters, and oblige themselves to acquiesce in what shall be decided. Where the day within which the arbiters are to decide, is left blank in the submission, practice has limited the arbiters power of deciding to a year. As this has proceeded
from the ordinary words of style, empowering the arbiters to determine betwixt and the day of next to come; therefore, where a submission is indefinite, without specifying any time, like all other contracts or obligations, it subsists for 40 years. Submissions, like mandates, expire by the death of any of the parties-submitters before sentence. As arbiters are not vested with jurisdiction, they cannot compel witnesses to make oath before them, or havers of writings to exhibit them; but this defect is supplied by the court of session, who, at the suit of the arbiters, or of either of the parties, will grant warrant for citing witnesses, or for the exhibition of writings. For the same reason, the power of arbiters is barely to decide; the execution of the decree belongs to the judge. Where the submitters consent to the registration of the decree-arbitral, performance may be enforced by summary diligence.
16. The power of arbiters is wholly derived from the consent of parties. Hence where their powers are limited to a certain day, they cannot pronounce sentence after that day. Nor can they subject parties to a penalty higher than that which they have agreed to in the submission. And where a submission is limited to special claims, sentence pronounced on subjects not specified in the submission is null, as being ultra vires com-promissi.
17. But, on the other hand, as submissions are designed for a most favourable purpose, the amicable composing of differences, the powers thereby conferred on arbiters receive an ample interpretation. Decrees-arbitral are not reducible upon any ground, except corruption, bribery, or falsehood.
The word crime, in its most general sense, includes every breach either of the law of God or of our country; in a more restricted meaning, it signifies such transgressions of law as are punishable by courts of justice. Crimes were, by the Roman law, divided into public and private. Public crimes were those that were expressly declared such by some law or constitution, and which, on account of their more atrocious nature and hurtful consequences, might be prosecuted by any member of the community. Private crimes could be pursued only by the party injured, and were generally punished by a pecuniary fine to be applied to his use. By the law of Scotland, no private party, except the person injured, or his next of kin, can accuse criminally; but the king's advocate, who in this question represents the community, has a right to prosecute all crimes in vindictam publicam, though the party injured should refuse to concur. Smaller offences, as petty riots, injuries, &c. which do not demand the public vengeance, pass generally by the appellation of delicts, and are punished either by fine or imprisonment.
2. The essence of a crime is, that there be an intention in the actor to commit; for an action in which the will of the agent has no part, is not a proper object either of rewards or punishments; hence arises the rule crimen dolo contrahitur. Simple negligence does not therefore constitute a proper crime. Yet where it is extremely gross, it may be punished arbitrarily. Far less can we reckon in the number of crimes, those committed
mitted by an idiot or furious person: but lesser degrees of fatuity, which only darken reason, will not afford a total defence, though they may save from the pena ordinaria. Actions committed in drunkenness are not to be considered as involuntary, seeing the drunkenness itself, which was the first cause of the action, is both voluntary and criminal.
3. On the same principle, such as are in a state of infancy, or in the confines of it, are incapable of a criminal action, dole not being incident to that age: but the precise age at which a person becomes capable of dole, being fixed neither by nature nor by statute, is by our practice to be gathered by the judge, as he best can, from the understanding and manners of the person accused. Where the guilt of a crime arises chiefly from statute, the actor, if he is under puberty, can hardly be found guilty; but, where nature itself points out its deformity, he may, if he is proximus paterditi, be more easily presumed capable of committing it: yet, even in that case, he will not be punished pena ordinaria.
4. One may be guilty of a crime, not only by perpetrating it himself, but being accessory to a crime committed by another; which last is by civilians styled ope et consilio, and, in our law-phrase, art and part. A person may be guilty, art and part, either by giving advice or counsel to commit the crime; or, 2. By giving warrant or mandate to commit it; or, 3. By actually assisting the criminal in the execution. It is generally agreed by doctors, that, in the more atrocious crimes, the adviser is equally punishable with the criminal; and that, in the lighter, the circumstances arising from the adviser's lesser age, the jocund or careless manner of giving advice, &c. may be received as pleas for softening the punishment. One who gives mandate to commit a crime, as he is the first spring of action, seems more guilty than the person employed as the instrument in executing it; yet the actor cannot excuse himself under the pretence of orders which he ought not to have obeyed.
5. Assistance may be given to the committer of a crime, not only in the actual execution, but previous to it, by furnishing him, intentionally, with poison, arms, or the other means of perpetrating it. That sort of assistance which is not given till after the criminal act, and which is commonly called abetting, though it be of itself criminal, does not infer art and part of the principal crime: as if one should favour the escape of a criminal knowing him to be such, or conceal him from justice.
6. Those crimes that are in their consequences most hurtful to society, are punished capitally, or by death; others escape with a lesser punishment, sometimes fixed by statute, and sometimes arbitrary, i. e. left to the discretion of the judge, who may exercise his jurisdiction, either by fine, imprisonment, or a corporal punishment. Where the punishment is left, by law, to the discretion of the judge, he can in no case extend it to death. The single cheat of the criminal falls on conviction, in all capital trials, though the sentence should not express it.
7. Certain crimes are committed more immediately against God himself; others, against the state; and a third kind, against particular persons. The chief crime in the first class, cognizable by temporal courts, is blas-
phemy, under which may be included atheism. This crime consists in the denying or vilifying the Deity, by speech or writing. All who curse God or any of the persons of the blessed Trinity, are to suffer death, even for a single act; and those who deny him, if they persist in their denial. The denial of a Providence, or of the authority of the holy Scriptures, is punishable capitally for the third offence.
8. No prosecution can now be carried on for witchcraft or conjuration. But all who undertake, from their skill in any occult science, to tell fortunes, or discover stolen goods, are to suffer imprisonment for a year, stand in the pillory four times in that year, and find surety for their future good behaviour.
9. Some crimes against the state are levelled directly Treason against the supreme power, and strike at the constitution itself: others discover such a contempt of law, as tends to baffle authority, or slacken the reins of government. Treason, crimen majestatis, is that crime which is aimed against the majesty of the state; and can be committed only by those who are subjects of that state either by birth or residence. Soon after the union of the two kingdoms in 1707, the laws of treason, then in force in England, were made ours by 7 Ann. c. 21. both with regard to the facts constituting that crime, to the forms of trial, the corruption of blood, and all the penalties and forfeitures consequent on it.
10. It is high treason, by the law of England, to imagine the death of the King, Queen-consort, or of the heir apparent of the crown; to levy war against the King, or adhere to his enemies; to counterfeit the king's coin, or his great or privy seal; to kill the chancellor, treasurer, or any of the 12 judges of England, while they are doing their offices; which last article is by the forenamed act 7 Ann. applied to Scotland, in the case of slaying any judge of the session or of judiciary sitting in judgment. Those who wash, clip, or lighten, the proper money of the realm; who advisedly affirm by writing or printing, that the Pretender has any right to the crown, that the king and parliament cannot limit the succession to it, or who hold correspondence with the Pretender, or any person employed by him, are also guilty of treason.
11. The forms of proceeding in the trial of treason, Pains of whether against peers or commoners, are set forth in a treason final treatise, published by order of the house of lords in 1709, subjoined to a collection of statutes concerning treason. By the conviction upon this trial, the whole estate of the traitor forfeits to the crown. His blood is also corrupted, so that, on the death of an ancestor, he cannot inherit; and the estate which he cannot take, falls to the immediate superior as escheat, ab defectum heredita, without distinguishing whether the land hold of the crown, or of a subject. No attainer for treason shall, after the death of the Pretender and all his sons, hurt the right of any person, other than that of the offender, during his natural life; the rights of creditors and other third parties, in the case of forfeiture on treason, must be determined by the law of England.
12. Misprision of treason, from meprandre, is the overlooking or concealing of treason. It is inferred by of treason, one's bare knowledge of the crime, and not discovering it to a magistrate or other person intitled by his office.
office to take examinations; though he should not in the least degree assent to it. The foresaid act 7 Ann. makes the English law of misprision ours. Its punishment is, by the law of England, perpetual imprisonment, together with the forfeiture of the offender's moveables, and of the profits of his heritable estate, during his life; that is, in the style of our law, his single and life-rent escheat.
13. The crime of sedition consists in the raising commotions or disturbances in the state. It is either verbal or real. Verbal sedition, or leasing making, is inferred from the uttering of words tending to create discord between the king and his people. It is punished either by imprisonment, fine, or banishment, at the discretion of the judge. Real sedition is generally committed by convoking together any considerable number of people, without lawful authority, under the pretence of redressing some public grievance, to the disturbing of the public peace. Those who are convicted of this crime are punished by the confiscation of their goods; and their lives are at the king's will. If any persons, to the number of 12, shall assemble, and being required by a magistrate or constable to disperse, shall nevertheless continue together for an hour after such command, the persons disobeying shall suffer death and confiscation of moveables.
14. Judges, who, wilfully or through corruption, use their authority as a cover to injustice or oppression, are punished with the loss of honour, fame, and dignity. Under this head may be classed theftbote (from bote, "compensation"), which is the taking a consideration in money or goods from a thief to exempt him from punishment, or connive at his escape from justice. A sheriff or other judge, guilty of this crime, forfeits his life and goods. And even a private person, who takes theftbote, suffers as the principal thief. The buying of disputed claims, concerning which there is a pending process, by any judge or member either of the session or of an inferior court, is punished by the loss of the delinquent's office, and all the privileges thereto belonging.
15. Deference-ment is the opposition given, or resistance made, to messengers or other officers, while they are employed in executing the law. The court of session is competent to this crime. It is punishable with the confiscation of moveables, the one half to the king, and the other to the creditor at whose suit the diligence was used. Armed persons, to the number of three or more, assisting in the illegal running, landing, or exporting of prohibited or uncustomed goods, or any who shall resist, wound, or maim any officer of the revenue, in the execution of his office, are punishable with death and the confiscation of moveables.
16. Breach of arrestment (see No. lxxviii. 5.) is a crime of the same nature with deference-ment, as it imports a contempt of the law and of our judges. It subjects to an arbitrary corporal punishment, and the escheat of moveables; with a preference to the creditor for his debt, and for such farther sum as shall be modified to him by the judge. Under this head of crimes against good government and police, may be reckoned the forestalling of markets; that is, the buying of goods intended for a public market, before they are carried there; which for the third criminal act infers the escheat of moveables; as also slaying salmon in
forbidden time, destroying plough grain in time of tillage, slaying or houghing horses or cows in time of harvest, and destroying or spoiling growing timber; as to the punishment of which, see statutes 1503, c. 72.—1587, c. 82. and 1689, c. 16.—1 Geo. I. St. 2. c. 48.
17. Crimes against particular persons may be divided either against life, limb, liberty, chastity, goods, or reputation. Murder is the wilful taking away of a person's life, without a necessary cause. Our law makes no distinction betwixt premeditated and sudden homicide: both are punished capitally. Casual homicide, where the actor is in some degree blamable; and homicide in self-defence, where the just bounds of defence have been exceeded; are punished arbitrarily: but the slaughter of night-thieves, house-breakers, assistants in masterful depredations, or rebels denounced for capital crimes, may be committed with impunity. The crime of demembrance, or the cutting off of a member, is joined with that of murder; but in practice, its punishment has been restricted to the escheat of moveables, and an assything or indemnification to the party. Mutilation, or the disabling of a member, is punished at the discretion of the judge.
18. Self-murder is as highly criminal as the killing our neighbour; and for this reason, our law has, contrary to the rule, crimina morte extinguuntur, allowed a proof of the crime, after the offender's death, that his single escheat might fall to the king or his donatory. To this end, an action must be brought, not before the judiciary, but the session, because it is only intended ad civilem effectum, for proving and declaring the self-murder; and the next of kin to the deceased must be made a party to it.
19. The punishment of parricide, or of the murder of a parent, is not confined, by our law, to the criminal himself. All his posterity in the right line are declared incapable of inheriting; and the succession devolves on the next collateral heir. Even the cursing or beating of a parent infers death, if the person guilty be above 16 years; and an arbitrary punishment, if he be under it. A presumptive or statutory murder is constituted by 1690, c. 21. by which any woman who shall conceal her pregnancy, during its whole course, and shall not call for, or make use of, help in the birth, is to be reputed the murderer, if the child be dead, or amissing. This act was intended to discourage the unnatural practice of women making away with their children begotten in fornication, to avoid church-censures.
20. Duelling, is the crime of fighting in single combat, on previous challenges given and received. Fighting in a duel, without licence from the king, is punishable by death; and whatever person, principal or second, shall give a challenge to fight a duel, or shall accept a challenge, or otherwise engage therein, is punished by banishment and escheat of moveables, though no actual fighting should ensue.
21. Hainsucken (from haim "home," and socken "to Hainsucken seek or pursue") is the assaulting or beating of a person in his own house. The punishment of this crime is nowhere defined, except in the books of the Majesty, which make it the same as that of a rape; and it is, like rape, capital by our practice. The assault must be made in the proper house of the person assaulted, where
Law of Scotland. where he lies and rises daily and nightly; so that neither a public house, nor even a private, where one is only transiently, falls within the law.
Battery. 22. Any party to a law-suit, who shall slay, wound, or otherwise invade his adversary, at any period of time between executing the summons and the complete execution of the decree, or shall be accessory to such invasion, shall lose his cause. The sentence pronounced on this trial, against him who has committed the battery, is not subject to reduction, either on the head of minority, or on any other ground whatever: and if the person prosecuted for this crime shall be denounced for not appearing, his liferent, as well as single escheat, falls upon the denunciation.
Wrongous imprisonment. 23. The crime of wrongous imprisonment is inferred, by granting warrants of commitment in order to trial, proceeding on informations not subscribed, or without expressing the cause of commitment; by receiving or detaining prisoners on such warrants; by refusing to a prisoner a copy of the warrant of commitment; by detaining him in close confinement, above eight days after his commitment; by not releasing him on bail, where the crime is bailable; and by transporting persons out of the kingdom, without either their own consent, or a lawful sentence. The persons guilty of a wrongous imprisonment are punished by a pecuniary mulct, from L. 6000 down to L. 400 Scots, according to the rank of the person detained; and the judge, or other person guilty, is over and above subjected to pay to the person detained a certain sum per diem, proportioned to his rank, and is declared incapable of public trust. All these penalties may be inflicted for by a summary action before the session, and are subject to no modification.
Adultery. 24. Adultery, is the crime by which the marriage-bed is polluted. This crime could neither by the Roman nor Jewish law be committed, but where the guilty woman was the wife of another: by ours, it is adultery, if either the man or woman be married. We distinguish between simple adultery, and that which is notorious or manifest. Open and manifest adulterers, who continue incorrigible, notwithstanding the censures of the church, are punished capitally. This crime is distinguished by one or other of the following characters: where there is issue procreated between the adulterers; or where they keep bed and company together notoriously; or where they give scandal to the church, and are, upon their obstinate refusing to listen to its admonitions, excommunicated. The punishment of simple adultery, not being defined by statute, is left to the discretion of the judge; but custom has made the falling of the single escheat one of its penalties.
Bigamy. 25. Bigamy, is a person's entering into the engagements of a second marriage, in violation of a former marriage-vow still subsisting. Bigamy, on the part of the man, has been tolerated in many states, before the establishment of Christianity, even by the Jews themselves; but it is prohibited by the precepts of the gospel, and it is punished by our law, whether on the part of the man or of the woman, with the pains of perjury.
Incest. 26. Incest is committed by persons who stand within the degrees of kindred forbidden in Lev. xviii. and is punished capitally. The same degrees are prohibited.
in affinity, as in consanguinity, Lev. xviii. 13. et seq. As this crime is repugnant to nature, all children, whether lawful or natural, stand on an equal footing: civilis ratio civilia jura corrumpere potest, non vero naturalia. It is difficult indeed to bring a legal proof of a relation merely natural, on the side of the father; but the mother may be certainly known without marriage.
27. There is no explicit statute making rape, or the ravishing of women, capital; but it is plainly supposed in act 1612. c. 4. by which the ravisher is exempted from the pains of death, only in the case of the woman's subsequent consent, or her declaration that she went off with him of her own free-will; and even then, he is to suffer an arbitrary punishment, either by imprisonment, confiscation of goods, or a pecuniary fine.
28. Theft is defined, A fraudulent intermeddling with the property of another, with a view of making gain. Our ancient law proportioned the punishment of the theft to the value of the goods stolen; heightening it gradually, from a slight corporal punishment to a capital, if the value amounted to thirty-two pennies Scots, which in the reign of David I. was the price of two sheep. In several latter acts, it is taken for granted, that this crime is capital. But where the thing stolen is of small value, we consider it not as theft but as pickery, which is punished either corporally or by banishment. The breaking of orchards, and the stealing of green wood, is punished by a fine, which rises as the crime is repeated.
29. Theft may be aggravated into a capital crime, though the value of the thing stolen be trifling; as theft twice repeated, or committed in the night, or by landed men; or of things set apart for sacred uses. The receivers and concealers of stolen goods, knowing them to be such, suffer as thieves. Those who barely harbour the person of the criminal within 48 hours either before or after committing the crime, are punished as partakers of the theft. Such as sell goods belonging to thieves or lawless persons who dare not themselves come to market, are punished with banishment and the escheat of moveables.
30. Theft attended with violence is called robbery; and in our old statutes, rief or stouthrief; under which class may be included forning, or the taking of meat and drink by force, without paying for it. Stouthrief came at last to be committed too audaciously, by bands of men associated together, that it was thought necessary to vest all our freeholders with a power of holding courts upon forners and rievors, and condemning them to death. Nay, all were capitally punished, who, to secure their lands from depredation, paid to the rievors a yearly contribution, which got the name of black-mail. An act also passed, commanding to banishment a band of forners, who were originally from Egypt, called gyffers, and adjudging to death all that should be reputed Egyptians, if found thereafter within the kingdom. Robbery committed on the seas is called piracy, and is punished capitally by the high admiral. Several of the facts which constitute this crime are set forth in a British statute, 8 Geo. I. c. 24.
31. Falsheood, in a large sense, is the fraudulent imitation or suppression of truth, to the damage of another. The lives and goods of persons convicted of using false weights or measures were, by our old law, in the king's
mercy: and their heirs could not inherit but upon a remission. The latest statute against this crime, punishes it by confiscation of moveables. That particular species of falsehood, which consists in the falsifying of writings, passes by the name of forgery. Our practice has now of a long time, agreeably to the Roman law, made this crime capital; unless the forgery be of executions, or other writings of smaller moment; in which case, it is punished arbitrarily.
32. The writing must not only be fabricated, but put to use or founded on, in order to infer this crime. And though it be strictly criminal, yet the trial of it is proper to the court of session; but where improbation is moved against a deed by way of exception, the inferior judge, before whom the action lies, is competent to it ad civilem effectum. When it is pleaded as an exception, our practice, to discourage affected delays, obliges the defender, who moves it, to consign L. 40 Scots; which he forfeits, if his plea shall appear calamitous.
33. Where a person, found guilty of forgery by the court of session, is by them remitted to the justiciary, an indictment is there exhibited against him, and a jury sworn, before whom the decree of session is produced, in place of all other evidence of the crime, in respect of which the jury find the pannel guilty; so that that decree being pronounced by a competent court, is held as full proof, or, in the style of the bar, as probatio probata.
34. Perjury, which is the judicial affirmation of a falsehood on oath, really constitutes the crimen falsi; for he who is guilty of it does, in the most solemn manner, substitute falsehood in the place of truth. To constitute this crime, the violation of truth must be deliberately intended by the swearer; and therefore reasonable allowances ought to be given to forgetfulness or misapprehension, according to his age, health, and other circumstances. The breach of a promissory oath, does not infer this crime; for he who promises on oath, may sincerely intend performance when he swears, and so cannot be said to call on God to attest a falsehood. Though an oath, however false, if made upon reference in a civil question, concludes the cause, the person perjured is liable to a criminal trial; for the effect of the reference can go no further than the private right of the parties.
35. Notwithstanding the mischievous consequences of perjury to society, it is not punished capitally, but by confiscation of moveables, imprisonment for a year, and infamy. The court of session is competent to perjury incidenter, when, in any examination upon oath, taken in a cause depending before them, a person appears to have sworn falsely; but in the common case, that trial is proper to the justiciary. Subornation of perjury consists in tampering with persons who are to swear in judgment, by directing them how they are to depose; and it is punished with the pains of perjury.
36. The crime of stellionate, from stellio, includes every fraud which is not distinguished by a special name; but is chiefly applied to conveyances of the same unmerited right, granted by the proprietor to different disponents. The punishment of stellionate must necessarily be arbitrary, to adapt it to the various natures and different aggravations of the fraudulent acts.
The persons guilty of that kind of it, which consists in granting double conveyances, are by our law declared infamous, and their lives and goods at the king's mercy. The cognisance of fraudulent bankruptcy is appropriated to the court of session, who may inflict any punishment on the offender that appears proportioned to his guilt, death excepted.
37. The crime of usury, before the reformation, consisted in the taking of any interest for the use of money; and now in taking an higher rate of interest than is authorised by law. It is divided into usura manifesta, or direct; and velata, or covered. One may be guilty of the first kind, either where he covenants with the debtor for more than the lawful interest on the loan-money; or where one receives the interest of a sum before it is due, since thereby he takes a consideration for the use of money before the debtor has really got the use of it. Where a debt is clogged with an uncertain condition, by which the creditor runs the hazard of losing his sum, he may covenant for an higher interest than the legal, without the crime of usury; for there, the interest is not given merely in consideration of the use of the money, but of the danger undertaken by the creditor.
38. Covered usury, is that which is committed under the mask not of a loan but of some other contract; e.g. a sale or an improper wadlet. And in general, all obligations entered into with an intention of getting more than the legal interest for the use of money, however they may be disguised, are usurious. As a farther guard against this crime, the taking more than the legal interest for the forbearance of payment of money, merchandise, or other commodities, by way of loan, exchange, or other contrivance whatever, or the taking a bribe for the loan of money, or for delaying its payment when lent, is declared usury. Where usury is proved, the usurious obligation is not only declared void, but the creditor, if he has received any unlawful profits, forfeits the treble value of the sums or goods lent. Usury, when it is to be pursued criminally, must be tried by the justiciary; but where the libel concludes only for voiding the debt, or restitution, the session is the proper court.
39. Injury, in its proper acceptation, is the reproaching or affronting our neighbour. Injuries are either verbal or real. A verbal injury, when directed against a private person, consists in the uttering contumelious words, which tend to expose our neighbour's character by making him little or ridiculous. It does not seem that the twitting one with natural defects, without any sarcastical reflections, though it be inhuman, falls under this description, as these imply no real reproach in the just opinion of mankind. Where the injurious expressions have a tendency to blacken one's moral character, or fix some particular guilt upon him, and are deliberately repeated in different companies, or handed about in whispers to confidants, it then grows up to the crime of slander; and where a person's moral character is thus attacked, the animus injuriandi is commonly inferred from the injurious words themselves, unless special circumstances be offered to take off the presumption, ex gr. that the words were uttered in judgment in one's own defence, or by way of information to a magistrate, and had some foundation in fact. Though the cognisance of slander is proper to the common law, it is a
missaries, who, as the judices Christianitatis, are the only judges of scandal; yet, for some time past, bare verbal injuries have been tried by other criminal judges, and even by the session. It is punished either by a fine, proportioned to the condition of the persons injuring and injured, and the circumstances of time and place; or if the injury import scandal, by publicly acknowledging the offence; and frequently the two are conjoined. The calling one a bankrupt is not, in strict speech, a verbal injury, as it does not affect the person's moral character; yet, as it may hurt his credit in the way of business, it founds him in an action of damages, which must be brought before the judge-ordinary. A real injury is inflicted by any fact by which a person's honour or dignity is affected; as striking one with a cane, or even aiming a blow without striking; spitting in one's face; assuming a coat of arms, or any other mark of distinction proper to another, &c. The composing and publishing defamatory libels may be reckoned of this kind. Real injuries are tried by the judge-ordinary, and punished either by fine or imprisonment, according to the demerit of the offenders.
40. After having shortly explained the several crimes punishable by our law, this treatise may be concluded with a few observations on criminal jurisdiction, the forms of trial, and the methods by which crimes may be extinguished. Criminal jurisdiction is founded, 1. Ratione domicilii, if the defender dwells within the territory of the judge. Vagabonds, who have no certain domicile, may be tried wherever they are apprehended. 2. Ratione delicti, if the crime was committed within the territory. Treason is triable, by the English law, in any county that the king should appoint; and, by a temporary act now expired, treason committed in certain Scots counties, was made triable by the court of judicary, wherever it should sit.
41. No criminal trial can proceed, unless the person accused is capable of making his defence. Absents therefore cannot be tried; nor fatuous nor furious persons, durante furore, even for crimes committed while they were in their senses. For a like reason, minors who had no curators, could not, by the Roman law, be tried criminally; but our practice considers every person who is capable of dole, to be also sufficiently qualified for making his defence in a criminal trial.
42. No person can be imprisoned in order to stand trial for any crime, without a warrant in writing expressing the cause, and proceeding upon a subscribed information, unless in the case of indignities done to judges, riots, and the other offences specially mentioned in 1701. c. 6. Every prisoner committed in order to trial, if the crime of which he is accused be not capital, is entitled to be released upon bail, the extent of which is to be modified by the judge, not exceeding 12,000 merks Scots for a nobleman, 6000 for a landed gentleman, 2000 for every other gentleman or burgess, and 600 for any other inferior person. That persons who, either from the nature of the crime with which they are charged, or from their low circumstances, cannot procure bail, may not lie for ever in prison untried, it is lawful for every such prisoner to apply to the criminal judge, that his trial may be brought on.
The judge must, within 24 hours after such application, issue letters directed to messengers, for intimating to the prosecutor to fix a diet for the prisoner's trial, within 60 days after the intimation, under the pain of wrongous imprisonment: And if the prosecutor does not insist within that time, or if the trial is not finished in forty days more when carried on before the Justiciary, or in thirty when before any other judge; the prisoner is, upon a second application, setting forth that the legal time is elapsed, entitled to his freedom, under the same penalty.
43. Upon one's committing any of the grosser Precogit crimes, it is usual for a justice of the peace, sheriff, or other judge, to take a precognition of the facts, i. e. to examine those who were present at the criminal act, upon the special circumstances attending it, in order to know whether there is ground for a trial, and to serve as a direction to the prosecutor, how to set forth the facts in the libel; but the persons examined may insist to have their declarations cancelled before they give testimony at the trial. Justices of the peace, sheriffs, and magistrates of boroughs, are also authorised to receive informations, concerning crimes to be tried in the circuit-courts; which informations are to be transmitted to the justice-clerk 40 days before the sitting of the respective courts. To discourage groundless criminal trials, all prosecutors, where the defender was absolved, were condemned by statute, in costs, as they should be modified by the judge, and besides were subjected to a small fine, to be divided between the file and the defender: And where the king's advocate was the only pursuer, his informer was made liable. This sufficiently warrants the present practice of condemning vexatious prosecutors in a pecuniary mulct, though far exceeding the statutory sum.
44. The forms of trial upon criminal accusations, differ much from those observed in civil actions, if we except the case of such crimes as the court of session is competent to, and of lesser offences tried before inferior courts. The trial of crimes proceeds either upon indictment, which is sometimes used when the person to be tried is in prison; or by criminal letters issuing from the signet of the justiciary. In either case, the defender must be served with a full copy of the indictment or letters, and with a list of the witnesses to be brought against him, and of the persons who are to pass on the inquest, and 15 free days must intervene between his being so served and the day of appearance.
When the trial proceeds upon criminal letters, the private prosecutor must give security, at raising the letters, that he will report them duly executed to the justiciary, in terms of 1535. c. 35.; and the defender, if he be not already in prison, is, by the letters, required to give caution, within a certain number of days after his citation, for his appearance upon the day fixed for his trial: And if he gives none within the days of the charge, he may be denounced rebel, which infers the forfeiture of his moveables.
45. That part of the indictment, or of the criminal letters, which contains the ground of the charge against the defender, and the nature or degree of the punishment he ought to suffer, is called the libel. All libels must be special, setting forth the particular facts inferring the guilt, and the particular place where
these facts were done. The time of committing the crime may be libelled in more general terms, with an alternative as to the month, or day of the month: but as it is not practicable, in most cases, to libel upon the precise circumstances of accession that may appear in proof, libels against accessories are sufficient, if they mention, in general, that the persons prosecuted are guilty art and part.
46. The defender in a criminal trial may raise letters of exculpation, for citing witnesses in proof of his defences against the libel, or of his objections against any of the jury or witnesses; which must be executed to the same day of appearance with that of the indictment or criminal letters.
47. The diets of appearance, in the court of justice, are peremptory: the criminal letters must be called on the very day to which the defender is cited; and hence, if no accuser appears, their effect is lost, instancia perit, and new letters must be raised. If the libel, or any of the executions, shall to the prosecutor appear informal, or if he be diffident of the proof, from the absconding of a necessary witness, the court will, upon a motion made by him, desert the diet pro loco et tempore; after which new letters become also necessary. A defender, who does not appear on the very day to which he is cited, is declared fugitive; in consequence of which, his single escheat falls. The defender, after his appearance in court, is called the pannel.
48. The two things to be chiefly regarded in a criminal libel, are, 1. The relevancy of the facts, i. e. their sufficiency to infer the conclusion; 2. Their truth. The consideration of the first belongs to the judge of the court; that of the other, to the jury or assize. If the facts libelled be found irrelevant, the pannel is dismissed from the bar; if relevant, the court remits the proof thereof to be determined by the jury; which must consist of 15 men picked out by the court from a greater number not exceeding 45, who have been all summoned, and given in list to the defender at serving him with a copy of the libel.
49. Crimes cannot, like debts, be referred to the defender's oath; for no person is compellable to swear against himself, where his life, limb, liberty, or estate is concerned, nor even in crimes which infer infamy; because one's good name is, in right estimation, as valuable as his life. There is one exception however to this rule in trying the crime of usury, which may be proved by the usurer's own oath, notwithstanding the rule, Nemo tenetur jurare in suam turpitudinem. Crimes therefore are in the general case provable only by the defender's free confession, or by writing, or by witnesses. No extrajudicial confession, unless it is adhered to by the pannel in judgement, can be admitted as evidence.
50. All objections relevant against a witness in civil cases are also relevant in criminal. No witness is admitted, who may gain or lose by the event of the trial. Socii criminis, or associates in the same crime, are not admitted against one another, except either in crimes against the state, as treason; in occult crimes, where other witnesses cannot be had, as forgery; or in thefts or depredations committed in the Highlands. The testimony of the private party injured may be received against the pannel, where the king's advocate
is the only prosecutor, if from the nature of the crime, there must needs be a penury of witnesses, as in rape, robbery, &c.
51. After all the witnesses have been examined in court, the jury are shut up in a room by themselves, where they must continue, excluded from all correspondence, till their verdict or judgment be subscribed by the foreman (or chancellor) and clerk; and according to this verdict the court pronounces sentence, either absolving or condemning. It is not necessary, by the law of Scotland, that a jury should be unanimous in finding a person guilty; the narrowest majority is as sufficient against the pannel, as for him. Juries cannot be punished on account of an erroneous verdict, either for or against the pannel.
52. Though the proper business of a jury be to inquire into the truth of the facts found relevant by the court, for which reason they are sometimes called the inquest; yet, in many cases, they judge also in matters of law or relevancy. Thus, though an objection against a witness should be repelled by the court, the jury are under no necessity to give more credit to his testimony than they think just: And in all trials of art and part, where special facts are not libelled, the jury, if they return a general verdict, are indeed judges not only of the truth, but of the relevancy of the facts that are sworn to by the witnesses. A general verdict, is that which finds in general terms, that the pannel is guilty or not guilty, or that the libel or defences are proved or not proved. In a special verdict, the jury finds certain facts proved, the import of which is to be afterwards considered by the court.
53. Criminal judges must now suspend for some time the execution of such sentences as affect life or limb, that so condemned criminals, whose cases deserve favour, may have access to apply to the king for mercy. No sentence of any court of judicature, south of the river Forth, importing either death or demembration, can be executed in less than 30 days; and, if north of it, in less than 40 days, after the date of the sentence. But corporal punishments, less than death or dismembering, e. g. whipping, pillory, &c. may be inflicted eight days after sentence on this side Forth, and twelve days after sentence beyond it.
54. Crimes are extinguished, 1. By the death of the criminal: both because a dead person can make no defence, so that his trial is truly a judging upon the hearing of one side; and because, though his guilt should be ever so notorious, he is after death carried beyond the reach of human penalties: Such trials therefore can have no effect, but to punish the innocent heir, contrary to that most equitable rule, Culpa tenet suos avitores. 2. Crimes may be extinguished by a remission from the sovereign. But a remission, tho' it secures the delinquent from the public resentment, the exercise of which belongs to the crown, cannot cut off the party injured from his claim of damages, over which the crown has no prerogative. Whoever therefore found on a remission, is liable in damages, to the private prosecutor, in the same manner as if he had been tried and found guilty. Even general acts of indemnity passed in parliament, though they secure against such penalties as law inflicts upon the criminal merely per modum panæ, yet do not against the payment of any pecuniary fine that is given by statute to
to the party injured, nor against the demand of any claim competent to him in name of damages.
55. Lesser injuries, which cannot be properly said to affect the public peace, may be extinguished, either by the private party's expressly forgiving him, or by his being reconciled to the offender, after receiving the injury. Hence arises the rule, Diffimulation tollitur injuria. But where the offence is of a higher nature, the party injured, though he may pass from the prosecution, in so far as his private interest is concerned, cannot preclude the king's advocate, or procurator-fiscal, from instituting ad vindictam publicam.
56. Crimes are also extinguished by prescription, which operates by the mere lapse of time, without any act either of the sovereign or of the private sufferer. Crimes prescribe in 20 years; but in particular crimes, the prescription is limited by statute to a shorter time. No person can be prosecuted upon the act against wrongous imprisonment, after three years. High treason, committed within his majesty's dominions, suffers likewise a triennial prescription, if indictment be not found against the traitor within that time. All actions
brought upon any penal statute made or to be made, where the penalty is appropriated to the crown, expire in two years after committing the offence; and where the penalty goes to the crown or other prosecutor, the prosecutor must sue within one year, and the crown within two years after the year ended. Certain crimes are, without the aid of any statute, extinguished by a shorter prescription than twenty years. By our old law, in the cases of rape, robbery, and hamesucken, the party injured was not heard after a silence of twenty-four hours; from a presumption, that persons could not be so grossly injured, without immediately complaining: And it is probable, that a prosecution for these crimes, if delayed for any considerable time, would be cast even at this day, or at least the punishment restricted. Lesser injuries suffer also a short prescription; law presuming forgiveness, from the nature of the offence, and the silence of the party. The particular space of time sufficient to establish this presumption must be determined by the judge, according to circumstances.
Law-Language. In England all law-proceedings were formerly written, as indeed all public proceedings were, in Norman or law French, and even the arguments of the counsel and decisions of the court were in the same barbarous dialect. An evident and shameful badge, it must be owned, of tyranny and foreign servitude; being introduced under the auspices of William the Norman, and his sons: whereby the observation of the Roman satyrist was once more verified, that Gallia caufidicos docuit facunda Britannos. This continued till the reign of Edward III.; who, having employed his arms successfully in subduing the crown of France, thought it unbecoming the dignity of the victors to use any longer the language of a vanquished country. By a statute, therefore, passed in the 36th year of his reign, it was enacted, that for the future all pleas should be pleaded, shown, defended, answered, debated, and judged, in the English tongue; but be entered and enrolled in Latin: In like manner as Don Alonso X. king of Castile (the great-grandfather of our Edward III.) obliged his subjects to use the Castilian tongue in all legal proceedings: and as, in 1286, the German language was established in the courts of the empire. And perhaps, if our legislature had then directed that the writs themselves, which are mandates from the king to his subjects to perform certain acts or to appear at certain places, should have been framed in the English language, according to the rule of our ancient law, it had not been very improper. But the record or enrolment of those writs and the proceedings thereon, which was calculated for the benefit of posterity, was more serviceable (because more durable) in a dead and immutable language than in any flux or living one. The practitioners, however, being used to the Norman language, and therefore imagining they could express their thoughts more aptly and more concisely in that than in any other, still continued to take their notes in law French; and of course, when those notes came to be published, under the denomination of re-
ports, they were printed in that barbarous dialect; which, joined to the additional terrors of a Gothic black letter, has occasioned many a student to throw away his Plowden and Littleton, without venturing to attack a page of them. And yet in reality, upon a nearer acquaintance, they would have found nothing very formidable in the language; which differs in its grammar and orthography as much from the modern French, as the diction of Chaucer and Gower does from that of Addison and Pope. Besides, as the English and Norman languages were concurrently used by our ancestors for several centuries together, the two idioms have naturally assimilated, and mutually borrowed from each other: for which reason the grammatical construction of each is so very much the same, that I apprehend an Englishman (with a week's preparation) would understand the laws of Normandy, collected in their grand coutumier, as well, if not better, than a Frenchman bred within the walls of Paris.
The Latin, which succeeded the French for the entry and enrolment of pleas, and which continued in use for four centuries, answers so nearly to the English (oftentimes word for word) that it is not at all surprising it should generally be imagined to be totally fabricated at home, with little more art or trouble than by adding Roman terminations to English words. Whereas in reality it is a very universal dialect, spread throughout all Europe at the irruption of the northern nations; and particularly accommodated and moulded to answer all the purposes of the lawyers with a peculiar exactness and precision. This is principally owing to the simplicity, or (if the reader pleases) the poverty and baldness of its texture, calculated to express the ideas of mankind just as they arise in the human mind, without any rhetorical flourishes, or perplexed ornaments of style: for it may be observed, that those laws and ordinances, of public as well as private communities, are generally the most easily understood, where strength and perspicuity, not harmony or elegance of
expression, have been principally consulted in compiling them. These northern nations, or rather their legislators, though they resolved to make use of the Latin tongue in promulgating their laws, as being more durable and more generally known to their conquered subjects than their own Teutonic dialects, yet (either through choice or necessity) have frequently intermixed therein some words of a Gothic original; which is, more or less, the case in every country of Europe, and therefore not to be imputed as any peculiar blemish in our English legal latinity. The truth is, what is generally denominated law-Latin is in reality a mere technical language, calculated for eternal duration, and easy to be apprehended both in present and future times; and on those accounts best suited to preserve those memorials which are intended for perpetual rules of action. The rude pyramids of Egypt have endured from the earliest ages, while the more modern and more elegant structures of Attica, Rome, and Palmyra, have sunk beneath the stroke of time.
As to the objection of locking up the law in a strange and unknown tongue, this is of little weight with regard to records; which few have occasion to read, but such as do, or ought to, understand the rudiments of Latin. And besides, it may be observed of the law-Latin, as the very ingenious Sir John Davis observes of the law-French, "that it is so very easy to be learned, that the meanest wit that ever came to the study of the law doth come to understand it almost perfectly in ten days without a reader."
It is true, indeed, that the many terms of art, with which the law abounds, are sufficiently harsh when Latinized (yet not more so than those of other sciences), and may, as Mr Selden observes, give offence "to some grammarians of squeamish stomachs, who would rather choose to live in ignorance of things the most useful and important, than to have their delicate ears wounded by the use of a word unknown to Cicero, Sallust, or the other writers of the Augustan age." Yet this is no more than must unavoidably happen when things of modern use, of which the Romans had no idea, and consequently no phrases to express them, come to be delivered in the Latin tongue. It would puzzle the most classical scholar to find an appellation, in his pure Latinity, for a constable, a record, or a deed of feoffment: it is therefore to be imputed as much to necessity as ignorance, that they were styled in our forensic dialect, constabularius, recordum, and feoffamentum. Thus again, another uncouth word of our ancient laws (for I defend not the ridiculous barbarisms sometimes introduced by the ignorance of modern practitioners), the substantival murdrum, or the verb murdare, however harsh and unclassical it may seem, was necessarily framed to express a particular offence; since no other word in being, occidere, interficere, necare, or the like, was sufficient to express the intention of the criminal, or quo animo the act was perpetrated; and therefore by no means came up to the notion of murder at present entertained by a law; viz. a killing with malice aforethought.
A similar necessity to this produced a similar effect at Byzantium, when the Roman laws were turned into Greek for the use of the oriental empire: for, without any regard to Attic elegance, the lawyers of the imperial courts made no scruple to translate fides commiss-
sarius, ἐπιδικαστικός; cubiculum, κωκυλλίον; filium familias, παῖδα-φύλακα; repatium, πρωτόν; compromissum, κωμψομίστον; reverentia et obsequium, εὐφρενεία καὶ ὀϊκεία; and the like. They studied more the exact and precise import of the words, than the neatness and delicacy of their cadence. And it may be suggested, that the terms of the law are not more numerous, more uncouth, or more difficult to be explained by a teacher, than those of logic, physics, and the whole circle of Aristotle's philosophy; nay, even of the politer arts of architecture and its kindred studies, or the science of rhetoric itself. Sir Thomas More's famous legal question contains in it nothing more difficult, than the definition which in his time the philosophers currently gave of their materia prima, the groundwork of all natural knowledge; that it is neque quid, neque quantum, neque quale, neque aliquid eorum quibus ens determinatur; or its subsequent explanation by Adrian Heereboard, who assures us, that materia prima non est corpus, neque per formam corporeitatis, neque per simplicem essentiam: est tamen ens, et quidem substantia, licet incompleta; habetque actum ex se entitativum, et simul est potentia subjectiva. The law, therefore, with regard to its technical phrases, stands upon the same footing with other studies, and requests only the same indulgence.
This technical Latin continued in use from the time of its first introduction, till the subversion of our ancient constitution under Cromwell; when, among many other innovations in the law, some for the better and some for the worse, the language of our records was altered and turned into English. But, at the restoration of king Charles, this novelty was no longer countenanced; the practitioners finding it very difficult to express themselves so concisely or significantly in any other language but the Latin. And thus it continued without any sensible inconvenience till about the year 1730, when it was again thought proper that the proceedings at law should be done into English, and it was accordingly so ordered by statute 4 Geo. II. c. 26. This was done, in order that the common people might have knowledge and understanding of what was alleged or done for and against them in the process and pleadings, the judgment and entries in cause. Which purpose it is doubtful how well it has answered; but there is reason to suspect, that the people are now, after many years experience, altogether as ignorant in matters of law as before. On the other hand, these inconveniences have already arisen from the alteration; that now many clerks and attorneys are hardly able to read, much less to understand, a record even of so modern a date as the reign of George I. And it has much enhanced the expence of all legal proceedings: for since the practitioners are confined (for the sake of the stamp-duties, which are thereby considerably increased) to write only a stated number of words in a sheet; and as the English language, through the multitude of its particles, is much more verbose than the Latin; it follows, that the number of sheets must be very much augmented by the change. The translation also of technical phrases, and the names of writs and other process, were found to be so very ridiculous (a writ of nisi prius, quare impedit, fiat facias, habeas corpus, and the rest, not being capable of an English dress with any degree of seriousness), that in two years time a new act was obliged to be
be made, 6 Geo. II. c. 14. which allows all technical words to continue in the usual language, and has thereby defeated every beneficial purpose of the former statute.
Trial by Wager of Law, (vadiatio legis;) a species of trial, in the English law, so called, as another species is styled "wager of battle," vadiatio duelli, (see BATTLE): because, as in the wager of battle, the defendant gave a pledge, gage, or vadium, or try the cause by battle; so here he was put in sureties or vadior, that at such a day he will make his law, that is, take the benefit which the law has allowed him, (see the article TRIAL). For our ancestors considered, that there were many cases where an innocent man, of good credit, might be overborne by a multitude of false witnesses; and therefore established this species of trial, by the oath of the defendant himself: for if he will absolutely swear himself not chargeable, and appears to be a person of reputation, he shall go free, and for ever acquitted of the debt, or other cause of action.
The manner of waging and making law is this. He that has waged, or given security, to make his law, brings with him into court eleven of his neighbours: a custom which we find particularly described so early as in the league between Alfred and Guthrun the Dane; for by the old Saxon constitution every man's credit in courts of law depended upon the opinion which his neighbours had of his veracity. The defendant then, standing at the end of the bar, is admonished by the judges of the nature and danger of a false oath. And if he still persists, he is to repeat this or the like oath: "Hear this, ye justices, that I do not owe unto Richard Jones the sum of ten pounds nor any penny thereof, in manner and form as the said Richard hath declared against me. So help me God." And thereupon his eleven neighbours or compurgators shall avow upon their oaths, that they believe in their consciences that he faith the truth; so that himself must be sworn de fidelitate, and the eleven de credulitate.
In the old Swedish or Gothic constitution, wager of law was not only permitted, as it is in criminal cases, unless the fact be extremely clear against the prisoner; but was also absolutely required, in many civil cases: which an author of their own very justly charges as being the source of frequent perjury. This, he tells us, was owing to the Popish ecclesiastics, who introduced this method of purgation from their canon law; and, having sown a plentiful crop of oaths in all judicial proceedings, reaped afterwards an ample harvest of perjuries: for perjuries were punished in part by pecuniary fines, payable to the coffers of the church. But with us in England wager of law is never required; and then only admitted, where an action is brought upon such matters as may be supposed to be privately transacted between the parties, and wherein the defendant may be presumed to have made satisfaction without being able to prove it. Therefore it is only in actions of debt upon simple contract, or for amercement, in actions of detinue, and of account, where the debt may have been paid, the goods restored, or the account balanced, without any evidence of either. And by such wager of law (when admitted) the plaintiff is perpetually barred; for the law, in the simplicity of the ancient times, presumed that no one
would forswear himself for any worldly thing. Wager of law, however, lieth in a real action, where the tenant alleges he was not legally summoned to appear, as well as in mere personal contracts.
The wager of law was never permitted but where the defendant bore a fair and unproachable character; and it was also confined to such cases where a debt might be supposed to be discharged, or satisfaction made in private, without any witnesses to attest it: and many other prudential restrictions accompanied this indulgence. But at length it was considered, that (even under all its restrictions) it threw too great a temptation in the way of indigent or profligate men; and therefore by degrees new remedies were devised, and new forms of action were introduced, wherein no defendant is at liberty to wage his law. So that now no plaintiff need at all apprehend any danger from the hardness of his debtor's conscience, unless he voluntarily chooses to rely on his adversary's veracity, by bringing an obsolete, instead of a modern, action. Therefore, one shall hardly hear at present of an action of debt brought upon a simple contract: that being supplied by an action of trespass on the case for the breach of a promise or assumpsit; wherein, though the specific debt cannot be recovered, yet damages may, equivalent to the specific debt. And, this being an action of trespass, no law can be waged therein. So, instead of an action of detinue to recover the very thing detained, an action of trespass on the case in trover and conversion is usually brought; wherein, though the horse or other specific chattel cannot be had, yet the defendant shall pay damages for the conversion, equal to the value of the chattel; and for this trespass also no wager of law is allowed. In the room of actions of account, a bill in equity is usually filed: wherein, though the defendant answers upon his oath, yet such oath is not conclusive to the plaintiff; but he may prove every article by other evidence, in contradiction to what the defendant has sworn. So that wager of law is quite out of use, being avoided by the mode of bringing the action; but still it is not out of force. And therefore, when a new statute inflicts a penalty, and gives an action of debt for recovering it, it is usual to add, "in which no wager of law shall be allowed;" otherwise an hardy delinquent might escape any penalty of the law, by swearing he had never incurred, or else had discharged it.
Custom-House Laws. The expedient of exacting duties on goods imported, or exported, has been adopted by every commercial nation in Europe. The attention of the British legislature has not been confined to the object of raising a revenue alone, but they have attempted by duties, exemptions, drawbacks, bounties, and other regulations, to direct the national trade into those channels that contribute most to the public benefit. And, in order to obtain every requisite information, all goods, exported or imported, whether liable to duty or not, are required to be entered at the respective custom-houses; and, from these entries, accounts are regularly made up of the whole British trade, distinguishing the articles, their quantity and value, and the countries which supply or receive them.
The objects of the British legislature may be reduced to the following heads:
First, To encourage the employment of British shipping and seamen, for the purpose of supplying our navy when public exigencies require.
Secondly, To increase the quantity of money in the nation, by prohibiting the exportation of British coin, by encouraging exportation, and discouraging importation, and by promoting agriculture, fisheries, and manufactures. For these purposes, it is penal to entice certain manufacturers abroad, or export the tools used in their manufactures; the exportation of raw materials is, in most instances, prohibited; and their importation permitted free from duty, and sometimes rewarded with a bounty. The exportation of some goods, manufactured to a certain length only (for example white cloth), is loaded with a duty, but permitted duty-free when the manufacture is carried to its full extent. The importation of rival manufactures is loaded with heavy duties, or absolutely prohibited. These restrictions are most severe towards nations with which the balance of trade is supposed against us, or which are considered as our most formidable rivals in power or commerce. Upon this principle the commerce with France, till lately, laboured under the heaviest restrictions.
Thirdly, To secure us plenty of necessaries for subsistence and manufacture, by discouraging the exportation of some articles that consume by length of time, and regulating the corn-trade according to the exigencies of the seasons.
Fourthly, To secure the trade of the colonies to the mother-country, and preserve a mutual intercourse, by encouraging the produce of their staple-commodities, and restraining their progress in these manufactures which they receive from us in exchange.
The foundation of our commercial regulations is the famous act of navigation, which was first enacted during the time of the commonwealth, and adopted by the first parliament after the restoration. The substance of this act, and subsequent amendments, is as follows.
1. Goods from Asia, Africa, and America, may not be imported, except in British ships duly navigated, or ships belonging to the British plantations; and they can only be imported from the place of their production or manufacture, or the port where they are usually first shipped for transportation. Goods of the Spanish or Portuguese plantations, imported from Spain and Portugal in British ships, bullion and some other inconsiderable articles are excepted.
The restriction on European goods is not universal, but extends to several of the bulkiest articles. Russian goods, masts, timber, boards, salt, pitch, rosin, tar, hemp, flax, raisins, figs, prunes, olives, oil, corn, sugar, potashes, wine, and vinegar, may not be imported, except in ships belonging to Great Britain or Ireland, legally manned; nor Turkey goods and currants, except in ships British built; or in ships belonging to the country where these goods are produced or manufactured, or first shipped for exportation; and, if imported in foreign ships, they pay alien's duty.
In order to intitle a ship to the privileges of a British ship, it must be built in Britain, and belong entirely to British subjects; and the master, and three-fourths of the mariners, must be British subjects, except in case of death, or unavoidable accidents. In
time of war, the proportion of British mariners required is generally confined to one-fourth; and the same proportion only is required in the Greenland fishery.
No goods may be imported into, or exported from, the plantations in Asia, Africa, or America, except in ships built in Britain, Ireland, or the plantations, or prize-ships, manned by British subjects, duly registered, and legally navigated.
The following goods, enumerated in the act of navigation and subsequent acts, may not be exported from the plantations, except to some other plantation or to Britain: Tobacco, cotton-wool, indigo, ginger, fustic, and other dying wood, molasses, hemp, copper-ore, beaver-skins and other furs, pitch, tar, turpentine, masts, yards, and bolls, coffee, pymento, cocoa-nuts, whale-fins, raw silk, pot and pearl ashes. Rice and sugar were formerly comprehended in this list, but their exportation is now permitted under certain restrictions.
Iron may not be imported to Europe, except to Ireland; and none of the non-enumerated may be imported to any country north of Cape Finistere, except the Bay of Biscay and Ireland.
2. For the more effectual prevention of smuggling, no goods may be imported in vessels belonging to British subjects, and no wine, in any vessel whatever, unless the master have a manifest on board, containing the name, measure, and built of the ship, the place to which it belongs, and a distinct enumeration of the goods on board, and places where they were laden. If the ship be cleared from any place under his Majesty's dominions, the manifest must be attested by the chief officer of the customs, or chief magistrate, who is required to transmit a copy thereof to the place of destination. Ship-masters must deliver copies of this manifest to the first custom-house officer who goes on board within four leagues of the shore, and also to the first who goes on board within the limits of any port, and must deliver the original manifest to the custom-house at their arrival, and make report of their cargo upon oath. If the report disagree with the manifest, or either disagree with the cargo on board, the ship-master is liable in the penalty of L. 200. The proprietors of the goods must enter them, and pay the duties within 20 days; otherwise they may be carried to the custom-house, and sold by auction, if not relieved within six months; and the overplus of the value, after paying duty and charges, paid to the proprietors.
3. The importation of cattle, beef, mutton, and pork, except from Ireland, woollen cloths, malt, and various articles of hardware, cutlery, and earthen ware, is prohibited: Also the following goods from Germany and the Netherlands; olive oil, pitch, tar, potashes, rosin, salt, tobacco, wines, except Rhine wine, and Hungary wines from Hamburg.
4. The importation of various other goods is restricted by particular regulations respecting the time and place of importation, the packages, the burden of the ship, the requisition of a licence, and other circumstances.
To guard more effectually against clandestine trade, the importation of some articles is only permitted in ships of a certain burden, whose operations are not easily concealed. Spirits must be imported in ships of
100 tons or upwards, except rum, and spirits of British plantations, which are only restricted to 70 tons; wine, 60 tons; tea, tobacco, and snuff, 50 tons; salt, 40 tons. Wine, spirits, and tobacco are also restricted in respect of the packages in which they may be imported.
5. Diamonds and precious stones, flax, flax-feed, linen-rags, beaver-wool, wool for clothiers, linen-yarn unbleached, and most drugs used in dyeing, may be imported duty free.
6. All goods imported are liable to duties, except such as are expressly exempted. The revenue of customs is of great antiquity in Britain, but was new-modelled at the restoration of Charles II. A subsidy of tonnage on wines, and of poundage, or 1s. per pound value of other goods, was granted during the king's life, and, after several prolongations, rendered perpetual. A book of rates was composed for ascertaining these values; and articles not rated paid duty according to the value, as affirmed upon oath by the importer. If the goods be valued too low by the importer, the custom-house officer may seize them, upon paying to the proprietor the value he swore to, and 10 per cent. for profit; such goods to be sold, and the overplus paid into the customs. Various additional duties have been imposed; some on all goods, some on particular kinds; some according to the rates, some unconnected with the rates; some with an allowance of certain abatements, some without any allowance; the greater part to be paid down in ready money, and a few for which security may be granted; often with variations, according to the ship's place and circumstances of importation. The number of branches amounted to upwards of 50; and sometimes more than 10 were chargeable on the same articles. By this means, the revenue of the customs has be-
come a subject of much intricacy. The inconveniences which this gave rise to are now removed by the consolidation act; which appoints one fixed duty for each article free from fractions, instead of the various branches to which they were formerly subject.
7. Goods of most kinds may be exported duty free when regularly entered; and those that have paid duty on importation are generally intitled to drawback of part, sometimes of the whole, when re-exported within three years, upon certificate that the duties were paid on importation, and oath of their identity. In some cases, a bounty is given on manufactured goods, when the materials from which they are manufactured have paid duty on importation; and manufactures subject to excise, have generally the whole or part of the excise duties returned.
8. The following goods are prohibited to be exported; white-ashes, horns, unwrought hides of black-cattle, tallow, coin, brass, copper, engines for knitting stockings, tools for cotton, linen, woollen, silk, iron, and steel manufactures; wool, woolfells, woollen yarn, fullers earth, fulling clay, and tobacco pipe-clay.
9. The object of the laws respecting the corn-trade is to encourage agriculture, by not only permitting the free exportation, but rewarding it with a bounty when the prices are low, and checking the importation by a heavy duty; and, to prevent scarcity, by prohibiting the exportation when the prices are high, and permitting importation at an easy duty. Various temporary laws have been enacted for these purposes, and sometimes other expedients employed in times of scarcity, such as prohibiting the distillery from corn, and manufacture of starch: And by a permanent law 1773, the low duties and bounties are regulated as under:
| Low duty. | Bounty. | |
|---|---|---|
| Wheat at or above | 48 s. per qr 6 d. | under 44 s. 5 s. |
| Rye, | 32 s. 3 d. | 28 s. 3 s. |
| Pease and beans, | 32 s. 3 d. | 28 s. no bounty. |
| Oats, | 16 s. 2 d. | 14 s. 2 s. |
| Barley, | 24 s. 2 d. | 22 s. 2 s. 6 d. |
The duties, when the prices are lower than in the first column, amount to a prohibition. When the prices are higher than in the column prefixed to the bounty, no exportation is permitted. When oats are under the bounty price, oatmeal is intitled to a bounty of 2 s. 6 d. per quarter.
10. Bounties are allowed on the exportation of refined sugar, sail-cloth, linen under limited prices, silk stuffs of British manufacture, cordage, spirits when barley is under 24 s. beef, pork, and the following kinds of fish, salmon, herrings, pilchards, cod, ling, fluke, and sprats.
Various other bounties are allowed for the encouragement of our fisheries. Ships from 150 to 300 tons employed in the Greenland whale-fishery, and conforming to the regulations prescribed, are allowed 30 s. per ton. Vessels employed in the herring-fishery receive 20 s. per ton, besides a bounty on the herrings caught and cured, amounting in some cases to 4 s. per barrel. Other bounties are granted to a limited number of the most successful vessels employed in the her-
ring and Newfoundland fisheries, and in the southern whale-fishery.
It is unnecessary and impracticable, in this place, to enter into a full detail of our custom-house laws. Indeed, all that can be admitted into a work of this kind, must convey but very imperfect information; and even that little becomes useless in a short time from alterations in the law. We have therefore only marked the general outlines in the present article; which, however, will be sufficient to enable the reader to judge of the principles upon which the British legislature has acted. How far the means employed have contributed to the ends proposed, and how far the ends themselves are always wise; or whether a trade encumbered by fewer restrictions would not prove more extensive and beneficial; has been a subject of much discussion: and of late a more liberal system has been embraced in our commercial treaty with France, and in other regulations.
Merchandise Laws. The laws relating to commercial and maritime affairs approach nearer to uniformity
through the different countries of Europe, than those on other subjects. Some of the fundamental regulations have been taken from the Roman law; others have been suggested by experience, during the progress of commerce; and the whole have been gradually reduced to a system, and adopted into the laws of trading nations, but with some local varieties and exceptions.
The British legislature has enacted many statutes respecting commerce; yet the greater part of our mercantile law is to be collected from the decisions of our courts of justice, founded on the custom of merchants. A proof of such custom, where no direct statute interferes, determines the controversy, and becomes a precedent for regulating like cases afterwards. The existence of a custom not formerly recognized, is, in England, determined by a jury of merchants.
The most common mercantile contracts are those between buyer and seller; between factor and employer; between partners; between the owners, masters, mariners, and freighters of ships; between insurers and the owners of the subject insured; and between the parties concerned in transacting bills of exchange. See FACTORAGE, SALE, PARTNERSHIP, INSURANCE, BILL, &c. and the next article.
Maritime Laws. The most ancient system of maritime laws is that of Rhodes, which was in force during the time of the Grecian empire, and afterwards incorporated into the Roman law. Although, in some parts, not applicable to the present state of trade, and, in others, now hardly intelligible, it contains the groundwork of the most equitable and beneficial rules observed in modern commerce. A like system was set forth by Richard I. of England, called the Statutes of Oleron; and another, by the town of Wisby, in the island of Gothland. From these systems, improved and enlarged in the course of time, our general maritime law is derived. The jurisdiction of matters purely maritime belongs, in England, to the court of admiralty, which proceeds on the civil law; but their proceedings are subject to the controul, and their decisions to the review, of the superior courts.
We shall here consider the obligations which subsist between the masters or owners of ships, the freighters, and the furnisbers of provisions or repairs.
1. Masters and Freighters. A charter-party is a contract between the master and freighters, in which the ship and voyage is described, and the time and conditions of performing it are ascertained.
The freight is most frequently determined for the whole voyage, without respect to time. Sometimes it depends on the time.
In the former case, it is either fixed at a certain sum for the whole cargo; or so much per ton, barrel-bulk, or other weight or measure; or so much per cent. on the value of the cargo. This last is common on goods sent to America; and the invoices are produced to ascertain the value.
The burden of the ship is generally mentioned in the contract, in this manner, one hundred tons, or thereby; and the number mentioned ought not to differ above 5 tons, at most, from the exact measure. If a certain sum be agreed on for the freight of the ship, it must all be paid, although the ship, when measured, should prove less, unless the burden be warranted. If the
ship be freighted for transporting cattle, or slaves, at so much a head, and some of them die on the passage, freight is only due for such as are delivered alive; but, if for lading them, it is due for all that were put on board.
When a whole ship is freighted, if the master suffers any other goods besides those of the freighter to be put on board, he is liable for damages.
It is common to mention the number of days that the ship shall continue at each port to load or unload. The expression used is, work weather days; to signify, that Sundays, holidays, and days when the weather stops the work, are not reckoned. If the ship be detained longer, a daily allowance is often agreed on, in name of demurrage.
If the voyage be completed in terms of the agreement, without any misfortune, the master has a right to demand payment of the freight before he delivers the goods. But if the safe delivery be prevented by any fault or accident, the parties are liable, according to the following rules.
If the merchant do not load the ship within the time agreed on, the master may engage with another, and recover damages.
If the merchant load the ship, and recal it after it has set sail, he must pay the whole freight; but if he unload it before it sets sail, he is liable for damages only.
If a merchant loads goods which it is not lawful to export, and the ship be prevented from proceeding on that account, he must pay the freight notwithstanding.
If the shipmaster be not ready to proceed on the voyage at the time agreed on, the merchant may load the whole, or part of the cargo, on board another ship, and recover damages; but chance, or notorious accident, by the marine law, releases the master from damages.
If an embargo be laid on the ship before it sails, the charter-party is dissolved, and the merchant pays the expence of loading and unloading; but if the embargo be only for a short limited time, the voyage shall be performed when it expires, and neither party is liable for damages.
If the shipmaster fails to any other port than that agreed on, without necessity, he is liable for damages; if through necessity, he must fail to the port agreed on, at his own expence.
If a ship be taken by the enemy, and retaken or ransomed, the charter-party continues in force.
If the master transfer the goods from his own ship to another, without necessity, and they perish, he is liable for the value; but if his own ship be in imminent danger, the goods may be put on board another ship at the risk of the owner.
If a ship be freighted out and home, and a sum agreed on for the whole voyage, nothing is due till it return; and the whole is lost if the ship be lost on the return.
If a certain sum be specified for the homeward voyage, it is due, although the factor abroad should have no goods to send home.
In the case of a ship freighted to Madeira, Carolina, and home, a particular freight fixed for the homeward voyage, and an option reserved for the factor at Carolina.
Law. Carolina to decline it, unless the ship arrived before 1st of March: the shipmaster, foreseeing he could not arrive there within that time, and might be disappointed of a freight, did not go there at all. He was found liable in damages, as the obligation was absolute on his part, and conditional only on the other.
If the goods be damaged without fault of the ship or master, the owner is not obliged to receive them and pay freight, but he must either receive the whole, or abandon the whole; he cannot choose those that are in best order, and reject the others. If the goods be damaged through the insufficiency of the ship, the master is liable for the same; but, if it be owing to stress of weather, he is not accountable. It is customary for shipmasters, when they suspect damage, to take a protest against wind and weather at their arrival. But as this is the declaration of a party, it does not bear credit, unless supported by collateral circumstances.
If part of the goods be thrown over-board, or taken by the enemy, the part delivered pays freight.
The shipmaster is accountable for all the goods received on board, by himself or mariners, unless they perish by the act of God, or of the king's enemies.
Shipmasters are not liable for leakage on liquors; nor accountable for the contents of packages, unless packed and delivered in their presence.
Upon a principle of equity, that the labourer is worthy of his hire, differences arising with regard to freight, when the case is doubtful, ought rather to be determined in favour of the shipmaster.
2. Ship and Owners with Creditors. When debts are contracted for provisions or repairs to a ship, or arise from a failure in any of the above mentioned obligations, the ship and tackle, and the owners, are liable for the debt, as well as the master.
By the mercantile law, the owners are liable in all cases, without limitation; but by statute, they are not liable for embezzlement beyond their value of ship, tackle, and freight.
A shipmaster may pledge his ship for necessary repairs during a voyage; and this hypothecation is implied by the maritime law when such debts are contracted. This regulation is necessary, and is therefore adopted by all commercial nations; for, otherwise, the master might not find credit for necessary repairs, and the ship might be lost. If repairs be made at different places, the last are preferable.
The relief against the ship is competent to the court of admiralty in England, only when repairs are furnished during the course of a voyage; for the necessity of the case extends no further. If a ship be repaired at home (e. g. upon the river Thames), the creditor is only intitled to relief at common law.
The creditor may sue either the masters or owners; but if he undertook the work on the special promise of the one, the other is not liable.
If the master buys provisions on credit, the owners are liable for the debt, though they have given him money to pay them.
If a ship be mortgaged, and afterwards lost at sea, the owners must pay the debt; for the mortgage is only an additional security, though there be no express words to that purpose in the covenant.
If a ship be taken by the enemy, and ransomed, the owners are liable to pay the ransom, though the ransomer die in the hands of the captors.
3. Owners of ship and cargo with each other. There is a mutual obligation which subsists between all the owners of a ship and cargo. In time of danger, it is often necessary to incur a certain loss of part for the greater security of the rest; to cut a cable; to lighten the ship, by throwing part of the goods overboard; to run it ashore; or the like: and as it is unreasonable that the owners of the thing exposed for the common safety should bear the whole loss, it is defrayed by an equal contribution among the proprietors of the ship, cargo, and freight. This is the famous Lex Rhodia de jactu, and is now called a general average.
The custom of valuing goods which contribute to a general average, is not uniform in all places. They are generally valued at the price they yield at the port of destination, charges deducted; and goods thrown overboard are valued at the price they would have yielded there. Sailors wages, cloaths and money belonging to passengers, and goods belonging to the king, pay no general average; but proprietors of gold and silver, in case of goods being thrown overboard, contribute to the full extent of their interest.
The following particulars are charged as general average: Damage sustained in an engagement with the enemy; attendance on the wounded, and rewards given for service in time of danger, or gratuities to the widows or children of the slain; ransom; goods given to the enemy in the nature of ransom; charges of bringing the ship to a place of safety when in danger from the enemy, or waiting for convoy; charges of quarantine; goods thrown overboard; masts or rigging cut; holes cut in the ship to clear it of water; pilotage, when a lake is sprung; damage, when voluntarily run aground, and expence of bringing it afloat; goods lost by being put in a lighter; the long boat lost in lightening the ship in time of danger; hire of cables and anchors; charges of laying in ballast, victualling, and guarding the ship when detained; charges at law, in reclaiming the ship and cargo; interest and commission on all these debursemments.
Though goods put on board a lighter, and lost, are charged as a general average; yet if the lighter be saved, and the ship with the rest of the goods be lost, the goods in the lighter belong to their respective proprietors, without being liable to any contribution.
If part of the goods be plundered by a pirate, the proprietor or shipmaster is not intitled to any contribution.
The essential circumstances that constitute a general average are these; the loss must be the effect of a voluntary action; and the object of that action the common safety of the whole. Quarantine, which is allowed, seems not to fall within this description.
4. Quarantine. See QUARANTINE.
5. Wrecks. See WRECK.
6. Impress. See IMPRESSING.
7. Insurance. See INSURANCE.
Game-Laws. See the article GAME.
Sir William Blackstone, treating of the alterations in our laws, and mentioning franchises granted of chase and free warren, as well to preserve the breed of ani-
mals, as to indulge the subject, adds, "From a similar principle to which, though the forest-laws are now mitigated, and by degrees grown entirely obsolete; yet from this root has sprung a bastard slip, known by the name of the game-law, now arrived to and wanting in its highest vigour: both founded upon the same unreasonable notion of permanent property in wild creatures; and both productive of the same tyranny to the commons; but with this difference, that the forest-laws established only one mighty hunter throughout the land; the game laws have raised a little Nimrod in every manor. And in one respect the ancient law was much less unreasonable than the modern; for the king's grantee of a chase or free-warren, might kill game in every part of his franchise; but now, though a freeholder of less than L. 100 a year is forbidden to kill partridge upon his own estate, yet nobody else (not even the lord of the manor, unless he hath a grant of free warren) can do it without committing a trespass and subjecting himself to an action.
Under the article GAME, the destroying such beasts and fowls as are ranked under that denomination, was observed (upon the old principles of the forest-law) to be a trespass and offence in all persons alike, who have not authority from the crown to kill game (which is royal property) by the grant of either a free warren, or at least a manor of their own. But the laws called the game-laws have also inflicted additional punishments (chiefly pecuniary) on persons guilty of this general offence, unless they be people of such rank or fortune as is therein particularly specified. All persons, therefore, of what property or distinction soever, that kill game out of their own territories, or even upon their own estates, without the king's licence expressed by the grant of a franchise, are guilty of the first original offence of encroaching on the royal prerogative. And those indigent persons who do so, without having such rank or fortune as is generally called a qualification, are guilty, not only of the original offence, but of the aggravations also created by the statutes for preserving the game: which aggravations are so severely punished, and those punishments so implacably inflicted, that the offence against the king is seldom thought of, provided the miserable delinquent can make his peace with the lord of the manor. The only rational footing upon which this offence, thus aggravated, can be considered as a crime, is, that in low and indigent persons it promotes idleness, and takes them away from their proper employments and callings: which is an offence against the public police and economy of the commonwealth.
The statutes for preserving the game are many and various, and not a little obscure and intricate; it being remarked, that in one statute only, 5 Ann. c. 14, there is false grammar in no fewer than six places, besides other mistakes: the occasion of which, or what denomination of persons were probably the penners of these statutes, it is unnecessary here to inquire. It may be in general sufficient to observe, that the qualifications for killing game, as they are usually called, or more properly the exemptions from the penalties inflicted by the statute law, are, 1. The having a freehold estate of L. 100 per annum; there being fifty times the property required to enable a man to kill a partridge, as to vote for a knight of the shire. 2. A
leasehold for 99 years of L. 150 per annum. 3. Being the son and heir apparent of an esquire (a very loose and vague description) or person of superior degree. 4. Being the owner or keeper of a forest, park, chase, or warren. For unqualified persons transgressing these laws, by killing game, keeping engines for that purpose, or even having game in their custody, or for persons (however qualified) that kill game, or have it in possession, at unreasonable times of the year, or unreasonable hours of the day or night, on Sundays or on Christmas day, there are various penalties assigned, corporal and pecuniary, by different statutes (after-mentioned), on any of which, but only on one at a time, the justices may convict in a summary way, or (in most of them) prosecutions may be carried on at the assizes. And, lastly, by statute 28 Geo. II. c. 12, no person, however qualified to kill, may make merchandise of this valuable privilege, by selling or exposing to sale any game, on pain of like forfeiture as if he had no qualification.
The statutes above referred to are as follow. No person shall take pheasants or partridges with engines in another man's ground, without licence, on pain of 10l. stat. 11 Hen. VII. c. 13. If any person shall take or kill any pheasants or partridges with any net in the night-time, they shall forfeit 20s. for every pheasant, and 10s. for every partridge taken; and hunting with spaniels in standing corn, incurs a forfeiture of 40s. 23 Eliz. c. 10. Those who kill any pheasant, partridge, duck, heron, hare, or other game, are liable to a forfeiture of 20s. for every fowl and hare; and selling, or buying to sell again, any hare, pheasant, &c. the forfeiture is 10s. for each hare, &c. 1 Jac. I. c. 17. Also pheasants or partridges are not to be taken between the first of July and the last of August, on pain of imprisonment for a month, unless the offenders pay 20s. for every pheasant, &c. killed: and constables, having a justice of peace's warrant, may search for game and nets, in the possession of persons not qualified by law to kill game or to keep such nets, 7 Jac. I. c. 11. Constables, by a warrant of a justice of peace, are to search houses of suspected persons for game: and if any game be found upon them, and they do not give a good account how they came by the same, they shall forfeit for every hare, pheasant, or partridge, not under 5s. nor exceeding 20s. And inferior tradesmen hunting, &c. are subject to the penalties of the act, and may likewise be sued for trespass. If officers of the army or soldiers kill game without leave, they forfeit 5l. an officer, and 10s. a soldier; 4 & 5 W. and M. c. 23. Higglers, chapmen, carriers, inn-keepers, victuallers, &c. having in their custody hare, pheasant, partridge, heath-game, &c. (except sent by some person qualified to kill game), shall forfeit for every hare and fowl 5l. to be levied by distress and sale of their goods, being proved by one witness, before a justice; and for want of distress shall be committed to the house of correction for three months: one moiety of the forfeiture to the informer, and the other to the poor. And selling game, or offering the same to sale, incurs the like penalty; wherein hare and other game found in a shop, &c. is adjudged an exposing to sale: killing hares in the night is liable to the same penalties: and if any persons shall drive wild-fowls with nets, between the first day of July and
and the first of September, they shall forfeit 5s. for every fowl; 5 Ann. c. 14. 9 Ann. c. 25. If any unqualified person shall keep a gun, he shall forfeit 10l.; and persons being qualified may take guns from those that are not, and break them; 21 & 22 Car. II. c. 25. and 33 H. VIII. c. 6. One justice of peace, upon examination and proof of the offence, may commit the offender till he hath paid the forfeiture of 10l. And persons, not qualified by law, keeping dogs, nets, or other engines to kill game, being convicted thereof before a justice of peace, shall forfeit 5l. or be sent to the house of correction for three months; and the dogs, game, &c. shall be taken from them, by the statute 5 Ann. If a person hunt upon the ground of another, such other person cannot justify killing of his dogs, as appears by 2 Roll. Abr. 567. But it was otherwise adjudged Mich. 33 Car. II. in C. B. 2 Cro. 44. and see 3. Lev. xxviii. In actions of debt, qui tam, &c. by a common informer on the statute 5 Ann. for 15l. wherein the plaintiff declared on two several counts, one for 10l. for killing two partridges, the other for 5l. for keeping an engine to destroy the game, not being qualified, &c. the plaintiff had a verdict for 5l. only: this action was brought by virtue of the stat. 8 Geo. I. See stat. 9 Geo. I. c. 22. See likewise 24 Geo. II. c. 34. for the better preservation of the game in Scotland. By the stat. 26 Geo. II. c. 2. all suits and actions brought by virtue of stat. 8 Geo. I. c. — for the recovery of any pecuniary penalty, or sum of money, for offences committed against any law for the better preservation of the game, shall be brought before the end of the second term after the offence committed.
By 28 Geo. II. c. 12. persons selling, or exposing to sale, any game, are liable to the penalties inflicted by 5 Ann. c. 14. on higglers, &c. offering game to sale: and game found in the house or possession of a poulterer, salesman, fishmonger, cook, or pastry-cook, is deemed exposing thereof to sale.
By 2 Geo. III. c. 19. after the 1st June 1762, no person may take, kill, buy or sell, or have in his custody, any partridge, between 12th February and 1st September, or pheasant between 1st February and 1st October, or heath-fowl between 1st January and 20th August, or grouse between 1st December and 25th July, in any year; pheasants taken in their proper season, and kept in mews, or breeding places, excepted: and persons offending in any of the cases aforesaid, forfeit 5l. per bird, to the prosecutor, to be recovered, with full costs, in any of the courts at Westminster. By this act, likewise, the whole of the pecuniary penalties under the 8 Geo. I. c. 19. may be sued for, and recovered to the sole use of the prosecutor, with double costs; and no part thereof to go to the poor of the parish.
By 5 George III. c. 14. persons convicted of entering warrens in the night-time, and taking or killing conys there, or aiding or assisting therein, may be punished by transportation, or by whipping, fine, or imprisonment. Persons convicted on this act, not liable to be convicted under any former act. This act does not extend to the destroying conys in the day-time, on the sea and river banks in the county of Lincoln, &c. No satisfaction to be made for damages occasioned by entry, unless they exceed 1s. It may not be improper to mention an act lately made,
and not yet repealed, viz. 10 Geo. III. c. 19. for preservation of the game, which shows the importance of the object. It is thereby enacted, That if any person kill any hare, &c. between sun setting and sun rising, or use any gun, &c. for destroying game, shall for the first offence be imprisoned for any time not exceeding six nor less than three months: if guilty of a second offence, after conviction of a first, to be imprisoned for any time not exceeding 12 months nor less than six; and shall also, within three days after the time of his commitment, either for the first or for any other offence, be once publicly whipped.
By 25 George III. c. 50. and 31 George III. c. 21. every person in Great Britain (the royal family excepted), who shall, after July 1. 1785, use any dog, gun, net, or other engine, for the taking or destruction of game (not as acting as gamekeeper), shall deliver in a paper or account in writing, containing his name and place of abode, to the clerk of the peace or his deputy, and annually take out a certificate thereof; and every such certificate shall be charged with a stamp-duty of L. 2, 2s. (and an additional L. 1, 1s. by 31 Geo. III. c. 21.) making in the whole L. 3, 3s. — Every deputation of a gamekeeper shall be registered with the clerk of the peace, and such gamekeeper shall annually take out a certificate thereof; which certificate shall be charged with a stamp duty of 10s. 6d. (and an additional 10s. 6d. by 31 Geo. III. c. 21), making in the whole L. 1, 1s. — The duties to be under the management of the commissioners of the stamp-office.
From and after the said 1st of July 1785, the clerk of the peace shall annually deliver to persons requiring the same, duly stamped, a certificate or licence according to the form therein mentioned, for which he shall be intitled to demand 1s. for his trouble; and on refusal or neglect to deliver the same, forfeit L. 20. — Every certificate to bear date the day when issued, and to continue in force until the 1st day of July then following, on penalty of 20l.
After the 1st day of July 1785, any person that shall use any greyhound, hound, pointer, setting-dog, spaniel, or other dog, or any gun, net, or engine, for taking or killing of game, without a certificate, is liable to the penalty of 20l. And if any gamekeeper shall, for the space of 20 days after the said 1st day of July, or if any gamekeeper thereafter to be appointed shall, for the space of 20 days next after such appointment, neglect or refuse to register his deputation and take out a certificate thereof, he is liable to the penalty of 20l.
The clerks of the peace are to transmit to the stamp-office in London alphabetical lists of the certificates granted in every year before the 1st day of August, under penalty of 20l. These lists are to be kept at the stamp-office in London, and there to be inspected on payment of 1s.: And the commissioners of the stamp duties are, once or oftener in every year, as soon as such lists are transmitted to them, to cause the same to be published in the newspapers circulating in each county, or such public paper as they shall think most proper.
If any gamekeeper, who shall have registered his deputation, and taken out a certificate thereof, shall be changed, and a new gamekeeper appointed in his stead, the first certificate is declared null and void,
and the person acting under the same after notice, is liable to the penalty of 20l. And any person in pursuit of game, who shall refuse to produce his certificate, or to tell his name and place of abode, or shall give in any false or fictitious name or place of abode to any person requiring the same, who shall have obtained a certificate, is liable to the penalty of 50l.
The certificates are not to authorize persons to kill game at any time prohibited by law, nor to give any person any right to kill game, unless such person shall be qualified so to do by the laws now in being, but shall be liable to the same penalties as if this act had not passed. [So that though by this act qualified and unqualified persons are equally included, yet having a certificate does not give an unqualified person a right to kill game: the point of right still stands upon the former acts of parliament; and any unqualified person killing game without a certificate, is not only liable to the penalty inflicted by this act, but also to all the
Military Law. See MILITARY and MARINE.
fromer penalties relating to the killing of game, &c.]
Witnesses refusing to appear on justices' summonses, or appearing and refusing to give evidence, forfeit 10l. The certificates obtained under deputation, not to be given in evidence for killing of game by a gamekeeper out of the manor, in respect of which such deputation or appointment was given and made. Persons counterfeiting stamps to suffer death as felons.
Penalties exceeding 20l. are to be recovered in any of his majesty's courts of record at Westminster; and penalties not exceeding 20l. are recoverable before two justices, and may be levied by distress. The whole of the penalties go to the informer.