ay be defined, "The command of the sovereign power, containing a common rule of life for the subjects." It is divided into the law of nature, the law of nations, and civil or municipal law.

1. The law of nature is that which God has prescribed to all men, by the internal dictate of reason alone. It is discovered by a just consideration of the agreeableness or disagreeableness of human actions to the nature of man; and... and comprehends all the duties we owe either to the Supreme Being, to ourselves, or to our neighbour; as reverence to God, self-defence, temperance, honour to our parents, benevolence to all, a strict adherence to our engagements, gratitude, &c. The law of nature, where it either commands or forbids, is immutable, and cannot be controlled by any human authority; but where that law does no more than confer a right, without obliging us to use it, the supreme power may divest us thereof, in whole or in part.

2. The law of nations is also the result of reason, and has God for its author; but it supposes mankind formed into several bodies politic, or states; and comprises all the duties which one state owes to another. These must of necessity be similar to the duties arising between individuals, since both are dictated by reason; so that what is the law of nature when applied to men considered simply as such, is indeed the law of nations when applied to kingdoms or states. From this source proceed the rights of war, the security of ambassadors, the obligations arising from treaties, &c. The particular usages of nations in their mutual correspondence which are not necessarily founded in reason, are no part of the law of nations in its proper sense: for they are arbitrary, and derive their sole authority from compact, either express or presumed; and may therefore, without violating the law of nature, be altered. For this reason, they ought to be thrown into the class of positive laws, whose obligation lasts no longer than the agreement upon which it is founded. Of this sort, are the ceremonial used in receiving and entertaining ambassadors, the privileges indulged to some of their servants, the rules observed in cartels for exchanging prisoners of war, &c.

3. Civil or municipal law, is that which every sovereign kingdom or state has appropriated to itself. The appellation of municipal was originally confined to the laws of municipia, or dependent states; but it came by degrees to signify all civil laws without distinction. No sovereign state can subsist without a supreme power, or a right of commanding in the last resort; the supreme power of one age cannot therefore be fettered by any enactment of a former age, otherwise it would cease to be supreme. Hence the law last in date derogates from prior laws.

PRINCIPLES OF THE LAW OF SCOTLAND:

Title I. General Observations.

1. The municipal law of Scotland, as of most other countries, consists partly of statutory or written law, which has the express authority of the legislative power; partly of customary or unwritten law, which derives force from its presumed or tacit consent.

2. Under our statutory or written law is comprehended, (1.) Our acts of parliament: not only those which were made in the reign of James I. of Scotland, and from thence down to our union with England in 1707; but such of the British statutes enacted since the union as concern this part of the united kingdom.

3. The remains of our ancient written law were published by Sir John Skene clerk-register, in the beginning of the last century, by licence of parliament. The books of Regiam Majestatem, to which the whole collection owes its title, seem to be a system of Scots law, written by a private lawyer at the command of David I.; and though no express confirmation of that treaty by the legislature appears, yet it is admitted to have been the ancient law of our kingdom by express statutes. The borough-laws, which were also enacted by the same king David, and the statutes of William, Alexander II., David II. and the three Roberts, are universally allowed to be genuine. Our parliaments have once and again appointed commissions to revise and amend the Regiam Majestatem, and the other ancient books of our law, and to make their report: but, as no report appears to have been made, nor consequently any ratification by parliament, none of these remains are received, as of proper authority, in our courts; yet they are of excellent use in proving and illustrating our most ancient customs.

4. Our written law comprehends, (2.) The acts of federunt, which are ordinances for regulating the forms of proceeding before the court of session in the administration of justice, made by the judges, who have a delegated power from the legislature for that purpose. Some of these acts dip upon matter of right, which declare what the judges apprehend to be the law of Scotland, and what they are to observe afterwards as a rule of judgment.

5. The civil or Roman and canon laws, though they are not perhaps to be deemed proper parts of our written law, have undoubtedly had the greatest influence in Scotland. The powers exercised by our sovereigns and judges have been justified upon no other ground, than that they were conformable to the civil or canon laws; and a special statute was judged necessary, upon the reformation, to refund such of their constitutions as were repugnant to the Protestant doctrine. From that period, the canon law has been little respected, except in questions of tithes, patronages, and some few more articles of ecclesiastical right: But the Roman continues to have great authority in all cases where it is not derogated from by statute or custom, and where the genius of our law suffers us to apply it.

6. Our unwritten or customary law, is that which, without being expressly enacted by statute, derives its force from the tacit consent of king and people; which consent is presumed from the ancient custom of the community. Custom, as it is equally founded in the will of the lawgiver with written law, has therefore the same effects: Hence, as one statute may be explained by another, so a statute may be explained or repealed by the uniform practice of the community, and even go into disuse by a posterior contrary custom. But this power of custom to derogate from prior statutes, is generally confined by lawyers to statutes concerning private right, and does not extend to those which regard public policy. 7. An uniform tract of the judgments or decisions of the court of session, is commonly considered as part of our customary law; and without doubt, where a particular custom is thereby fixed or proved, such custom of itself constitutes law: But decisions, though they bind the parties litigating, have not, in their own nature, the authority of law in similar cases; yet, where they continue uniform, great weight is justly laid on them. Neither can the judgments of the house of peers of Great Britain reach farther than to the parties in the appeal, since in these the peers act as judges, not as lawgivers.

8. Though the laws of nature are sufficiently published by the internal suggestion of natural light, civil laws cannot be considered as a rule for the conduct of life, till they are notified to those whose conduct they are to regulate. The Scots acts of parliament were, by our most ancient custom, proclaimed in all the different shires, boroughs, and baron-courts of the kingdom. But after our statutes came to be printed, that custom was gradually neglected; and at last, the publication of our laws, at the market-crosses of Edinburgh, was declared sufficient; and they became obligatory forty days thereafter. British statutes are deemed sufficiently notified, without formal promulgation; either because the printing is truly a publication, or because every subject is, by a maxim of the English law, party to them, as being present in parliament, either by himself or his representative. After a law is published, no pretence of ignorance can excuse the breach of it.

9. As laws are given for the rule of our conduct, they can regulate future cases only; for past actions, being out of our power, can admit of no rule. Declaratory laws form no exception to this; for a statute, where it is declaratory of a former law, does no more than interpret its meaning; and it is included in the notion of interpretation, that it must draw back to the date of the law interpreted.

10. By the rules of interpreting statute-law received in Scotland, an argument may be used from the title to the act itself, a rubro ad nigrum; at least, where the rubric has been either originally framed, or afterwards adopted by the legislature. The preamble or narrative, which recites the inconveniences that had arisen from the former law, and the causes inducing the enactment, may also lead a judge to the general meaning of the statute. But the chief weight is to be laid on the statutory words.

11. Laws, being directed to the unlearned as well as the learned, ought to be construed in their most obvious meaning, and not explained away by subtle distinctions; and no law is to suffer a figurative interpretation, where the proper sense of the words is as commodious, and equally fitted to the subject of the statute. Laws ought to be explained so as to exclude absurdities, and in the sense which appears most agreeable to former laws, to the intention of the lawgiver, and to the general frame and structure of the constitution. In prohibitory laws, where the right of acting is taken from a person, solely for the private advantage of another, the consent of him, in whose behalf the law was made, shall support the act done in breach of it; but the consent of parties immediately interested has no effect in matters which regard the public utility of a state. Where the words of a statute are capable but of one meaning, the statute must be observed, however hard it may bear on particular persons. Nevertheless, as no human system of laws can comprehend all possible cases, more may be sometimes meant by the lawgiver than is expressed; and hence certain statutes, where extension is not plainly excluded, may be extended beyond the letter, to similar and omitted cases: others are to be confined to the statutory words.

12. A strict interpretation is to be applied, 1. To correlative statutes, which repeal or restrict former laws, and to statutes which enact heavy penalties, or restrain the natural liberties of mankind. 2. Laws, made on occasion of present exigencies in a state, ought not to be drawn to similar cases, after the prejudice is over. 3. Where statutes establish certain solemnities as requisite to deeds, such solemnities are not suppliable by equivalents; for solemnities lose their nature, when they are not performed specifically. 4. A statute, which enumerates special cases, is, with difficulty, to be extended to cases not expressed; but, where a law does not descend to particulars, there is greater reason to extend it to similar cases. 5. Statutes, which carry a dilapidation or privilege to particular persons or societies, suffer a strict interpretation; because they derogate from the general law, and imply a burden upon the rest of the community. But at no rate can a privilege be explained to the prejudice of those in whose behalf it was granted. As the only foundation of customary law is usage, which consists in fact, such law can go no farther than the particular usage has gone.

13. All statutes, concerning matters specially favoured by law, receive an ample interpretation; as laws for the encouragement of commerce, or of any useful public undertaking, for making effectual the wills of dying persons, for restraining fraud, for the security of creditors, &c. A statute, though its subject-matter should not be a favourite of the law, may be extended to similar cases, which did not exist when the statute was made; and for which, therefore, it was not in the lawgiver's power to provide.

14. Every statute, however unfavourable, must receive the interpretation necessary to give it effect: And, on the other hand, in the extension of favourable laws, scope must not be given to the imagination, in discovering remote resemblances; the extension must be limited to the cases immediately similar. Where there is ground to conclude that the legislature has omitted a case out of the statute purposely, the statute cannot be extended to that case, let it be ever so similar to the cases expressed.

Tit. 2. Of jurisdiction and judges in general.

1. The object of law are persons, things, and actions: among persons, judges, who are invested with jurisdiction, deserve the first consideration. Jurisdiction is a power conferred upon a judge or magistrate, to take cognizance of, and decide causes according to law, and to carry his sentences into execution. That tract of ground, or district, within which a judge has the right of jurisdiction, is is called his territory: and every act of jurisdiction, exercised by a judge without his territory, either by pronouncing sentence, or carrying it into execution, is null.

2. The supreme power, which has the right of enacting laws, falls naturally to have the right of erecting courts, and appointing judges, who may apply these laws to particular cases: But, in Scotland, this right has been always intrusted with the Crown, as having the executive power of the state.

3. Jurisdiction is either supreme, inferior, or mixed: That jurisdiction is supreme, from which there lies no appeal to a higher court. Inferior courts are those whose sentences are subject to the review of the supreme courts, and whose jurisdiction is confined to a particular territory. Mixed jurisdiction participates of the nature both of the supreme and inferior: thus, the judge of the high court of Admiralty, and the commissaries of Edinburgh, have an universal jurisdiction over Scotland, and they can review the decrees of inferior admirals and commissaries; but since their own decrees are subject to the review of the courts of Session or Judiciary, they are, in that respect, inferior courts.

4. Jurisdiction is either civil or criminal: by the first, questions of private right are decided; by the other, crimes are punished. But, in all jurisdiction, though merely civil, there is a power inherent in the judge to punish, either corporally, or by a pecuniary fine, those who offend during the proceedings of the court, or who shall afterwards obstruct the execution of the sentence.

5. Jurisdiction is either privative or cumulative. Privative jurisdiction, is that which belongs only to one court, to the exclusion of all others. Cumulative, otherwise called concurrent, is that which may be exercised by any one of two or more courts, in the same cause. In civil cumulative jurisdiction, the private pursuer has the right of election before which of the courts he shall sue; but as, in criminal questions which are prosecuted by a public officer of court, a collision of jurisdiction might happen, through each of the judges claiming the exercise of their right, that judge, by whose warrant the delinquent is first cited or apprehended, (which is the first step of jurisdiction), acquires thereby (jure praeventionis) the exclusive right of judging in the cause.

6. All rights of jurisdiction, being originally granted in consideration of the fitness of the grantee, were therefore personal, and died with himself. But, upon the introduction of the feudal system, certain jurisdictions were annexed to lands, and descended to heirs, as well as the lands to which they were annexed; but now all heritable jurisdictions, except those of admiralty and a small pittance reserved to barons, are either abolished, or refuted and annexed to the crown.

7. Jurisdiction is either proper or delegated. Proper jurisdiction, is that, which belongs to a judge or magistrate himself, in virtue of his office. Delegated, is that which is communicated by the judge to another who acts in his name, called a deputy or deputy. Where a deputy appoints one under him, he is called a substitute. No grant of jurisdiction, which is an office requiring personal qualifications, can be delegated by the grantee to another, without an express power in the grant.

8. Civil jurisdiction is founded, 1. Ratione domicilii, if the defender has his domicile within the judge's territory. A domicile is the dwelling-place where a person lives with an intention to remain; and custom has fixed it as a rule, that residence for forty days founds jurisdiction. If one has no fixed dwelling-place, e.g., a soldier, or a travelling-merchant, a personal citation against him within the territory is sufficient to found the judge's jurisdiction over him, even in civil questions. As the defender is not obliged to appear before a court to which he is not subject, the pursuer must follow the defender's domicile.

9. It is founded, 2. Ratione rei sitae, if the subject in question lie within the territory. If that subject be moveable, the judge, whose jurisdiction is founded in this way, is the sole judge competent, excluding the judge of the domicile.

10. Where one, who has not his domicile within the territory, is to be sued before an inferior court ratione rei sitae, the court of session must be applied to, whose jurisdiction is universal, and who, of course, grants letters of supplement to cite the defender to appear before the inferior judge. Where the party to be sued resides in another kingdom, and has an estate in this, the court of session is the only proper court, as the commune forum to all persons residing abroad; and the defender, if his estate be heritable, is considered as lawfully summoned to that court, by a citation at the market-cross of Edinburgh, and pier and shore of Leith: but where a stranger, not a native of Scotland, has only a moveable estate in this kingdom, he is deemed to be so little subject to the jurisdiction of our courts, that action cannot be brought against him till his effects be first attached by an arrestment jurisdictionis fundanda causa, Harc. 487, which is laid on by a warrant issuing from the supreme courts of session, or admiralty, or from that within whose territory the subject is situated, at the suit of the creditor.

11. A judge may, in special cases, arrest or secure the persons of such as have neither domicile nor estate within his territory, even for civil debts. Thus, on the border between Scotland and England, warrants are granted of course by the judge-ordinary of either side, against those who have their domicile upon the opposite side, for arresting their persons, till they give caution judicio sibi: and even the persons of citizens or natives may be so secured, where there is just reason to suspect that they are in meditatione fugae, i.e., that they intend suddenly to withdraw from the kingdom; upon which suspicion, the creditor who applies for the warrant must make oath. An inhabitant of a borough-royal, who has furnished one who lives without the borough in meat, cloaths, or other merchandize, and who has no security for it but his own compt-book, may arrest his debtor, till he give security judicio sibi.

12. A judge may be declined, i.e., his jurisdiction disowned judicially, 1. Ratione causae, from his incompetency to the special cause brought before him. 2. Ratione sufficiendi judicis; where either the judge himself, or his near kinsman, has an interest in the suit. No judge can vote in the cause of his father, brother, or son, either by consanguinity or affinity; nor in the cause of his uncle or nephew by consanguinity. 3. Ratione privilegi; vilegii; where the party is by privilege exempted from their jurisdiction.

13. Prorogated jurisdiction (jurisdiction in consenti- entes) is that which is, by the consent of parties, confer- red upon a judge, who, without such consent, would be incompetent. Where a judge is incompetent, every step he takes must be null, till his jurisdiction be made com- petent by the parties actual submission to it. It is other- wise where the judge is competent, but may be declined by the party upon privilege.

14. In order to prorogation, the judge must have ju- risdiction, such as may be prorogated. Hence, proroga- tion cannot be admitted where the judge's jurisdiction is excluded by statute. Yet where the cause is of the same nature with those to which the judge is competent, though law may have confined his jurisdiction within a certain sum, parties may prorogate it above that sum un- less where prorogation is prohibited. Prorogation is not admitted in the king's causes; for the interest of the Crown cannot be hurt by the negligence of its officers.

15. All judges must at their admission swear, 1. The oath of allegiance, and subscribe the assurance; 2. The oath of abjuration; 3. The oath of supremacy; lastly, The oath de fidei administrationis.

16. A party who has either properly declined the ju- risdiction of the judge before whom he had been cited, or who thinks himself aggrieved by any proceedings in the cause, may, before decree, apply to the court of session to issue letters of advocation for calling the action from before the inferior court to themselves. The grounds therefore, upon which a party may pray for letters of ad- vocation, are incompetency and iniquity. Under incom- petency, is comprehended not only defect of jurisdiction, but all the grounds of declining a jurisdiction, in itself competent, arising either from suspicion of the judge, or privilege in the parties. A judge is said to commit in- iquity, when he either delays justice, or pronounces sen- tence, in the exercise of his jurisdiction, contrary to law.

17. That the court of session may not waste their time in trifles, no cause for a sum below twelve pound Sterling can be advocated to the court of session from the inferior judge competent: but if an inferior judge shall proceed upon a cause to which he is incompetent, the cause may be carried from him by advocation, let the subject be ever so inconsiderable.

Tit. 3. Of the supreme judges and Courts of Scotland.

1. The King, who is the fountain of jurisdiction, might by our constitution have judged in all causes, either in his own person, or by those whom he was pleased to vest with jurisdiction.

2. The parliament of Scotland, as our court of the last resort, had the right of reviewing the sentences of all our supreme courts.

3. By the treaty of union, 1707, the parliaments of Scotland and England are united into one parliament of Great Britain. From this period, the British house of Peers, as coming in place of the Scots parliament, is be- come our court of the last resort, to which appeals lie from all the supreme courts of Scotland: But that court has no original jurisdiction in civil matters, in which they judge only upon appeal. By art. 22. of that treaty, the Scots share of the representation in the house of Peers is fixed to fifteen Scots peers elective; and in the house of Commons, to forty-five commoners, of which thirty are elected by the freeholders of counties, and fifteen by the royal boroughs. The Scots privy council was also thereupon abolished, and sunk into that of Great Britain; which for the future is declared to have no other powers than the English privy council had at the time of the union.

Court of Session.

4. A court was erected in 1425, consisting of certain persons to be named by the king, out of the three estates of parliament, which was vested with the jurisdiction formerly lodged in the privy council, and got the name of the Session, because it was ordained to hold annually a certain number of sessions at the places to be specially appointed by the king. This court had a jurisdiction, cumulative with the judge ordinary, in spoilizes, and other poilitory actions, and in debts; but they had no cognizance in questions of property of herit- able subjects. No appeal lay from its judgments to the parliament. The judges of this court served by rotation, and were changed from time to time, after having sat forty days; and became so negligent in the administration of justice, that it was at last thought necessary to transfer the jurisdiction of this court to a council to be named by the king, called the daily council.

5. The present model of the court of session, or col- lege of justice, was formed in the reign of James V. The judges thereof, who are vested with an universal ci- vil jurisdiction, consisted originally of seven churchmen, seven laymen, and a president, whom it behoved to be a prelate; but spiritual judges were in 1584 partly, and in 1640 totally prohibited. The judges of session have been always received by warrants from the crown. Anciently his Majesty seems to have transferred to the court itself the right of chusing their own president; and in a de- cree recorded June 26, 1593, the king condescended to present to the lords, upon every vacancy in the bench, a list of three persons, out of which they were to chuse one. But his Majesty soon resumed the exercise of both rights, which continued with the Crown till the usurpa- tion; when it was ordained, that the king should name the judges of the session, by the advice of parliament: After the restoration, the nomination was again declared to be solely in the Sovereign.

6. Though judges may, in the general case, be named at the age of twenty-one years, the lords of session must be at least twenty-five. No person can be named lord of session, who has not served as an advocate or principal clerk of session for five years, or as a writer to the signet for ten: and in the case of a writer to the signet, he must undergo the ordinary trials upon the Roman law, and be found qualified two years before he can be named. Upon a vacancy in the bench, the king presents the suc- cessor by a letter addressed to the lords, wherein he re- quires them to try and admit the person presented. The powers given them to reject the presentee upon trial are taken away, and a bare liberty to remonstrate substituted in its place.

7. Besides the fifteen ordinary judges, the king was allowed to name three or four lords of his great council, who might sit and vote with them. These extraordinary lords were suppressed in the reign of Geo. I.

8. Though the jurisdiction of the session be properly limited to civil causes, the judges have always sustained themselves as competent to the crime of falsehood. Where the falsehood deserves death or demembment, they, after finding the crime proved, remit the criminal to the court of justiciary. Special statute has given to the court of session jurisdiction in contraventions of law, barrows, defences, and breach of arrestment; and they have been in use to judge in battery pendente lite, and in fury.

9. In certain civil causes, the jurisdiction of the session is exclusive of all inferior jurisdictions; as in declarators of property, and other competitions of heritable rights, provings of the tenor, cessiones honorum, restitution of minors, reductions of decrees or of writings, sales of the estates of minors or bankrupts, &c. In a second class of causes, their jurisdiction can be only exercised in the way of review, after the cause is brought from the inferior court; as in maritime and consistorial causes, which must be pursued in the first instance before the admiral or commissary; and in actions below twelve pounds Sterling, which must be commenced before the judge-ordinary. In all civil actions, which fall under neither of these classes, the jurisdiction of the session is concurrent, even in the first instance, with that of the judge-ordinary. The session may proceed as a court of equity by the rules of conscience, in abating the rigour of law, and giving aid in proper cases to such as in a court of law can have no remedy: and this power is inherent in the supreme court of every country, where separate courts are not established for law and for equity.

Court of Justiciary:

10. The supreme criminal judge was styled the Justiciar; and he had anciently an universal civil jurisdiction, even in matters of heritage. He was obliged to hold two justice courts or ayres yearly at Edinburgh or Peebles, where all the free-holders of the kingdom were obliged to attend. Besides this universal court, special justice-ayres were held in all the different shires of the kingdom twice in the year. These last having gone into disuse, eight deputies were appointed, two for every quarter of the kingdom, who should make their circuits over the whole in April and October.

11. The office of deputies was suppressed in 1723; and five lords of session were added, as commissioners of Justiciary, to the justice-general and justice-clerk. The justice-general, if present, is constant president of the court, and in his absence the justice-clerk. The kingdom is divided into three districts, and two of the judges are appointed to hold circuits in certain boroughs of each district twice in the year; one judge may proceed to business in the absence of his colleague.

12. By an old statute, the crimes of robbery, rape, murder, and wilful fire raising, (the four pleas of the Crown), are said to be referred to the King's court of Justiciary; but the only crime in which, de praxi, the jurisdiction of Justiciary became at last exclusive of all inferior criminal jurisdiction, was that of high treason. The court of Justiciary, when sitting at Edinburgh, has a power of advocating causes from all inferior criminal judges, and of suspending their sentences.

13. The circuit-court can also judge in all criminal causes which do not infer death or demembment, upon appeal from any inferior court within their district; and has a supreme civil jurisdiction, by way of appeal, in all causes not exceeding twelve pounds Sterling, in which their decrees are not subject to review; but no appeal is to lie to the circuit, till the cause be finally determined in the inferior court.

Court of Exchequer:

14. The court of Exchequer, as the King's chamberlain court, judged in all questions of the revenue. In pursuance of the treaty of Union, that court was abolished, and a new court erected, consisting of the Lord High Treasurer of Great Britain, and a chief Baron, with four other Barons of Exchequer; which Barons are to be made of sergeants at law, English barristers, or Scots advocates of five years standing. This court has a privative jurisdiction conferred upon it, as to the duties of customs, excise, or other revenues appertaining to the King or Prince of Scotland, and as to all honours and estates that may accrue to the crown; in which matters, they are to judge by the forms of proceeding used in the English court of Exchequer, under the following limitations; that no debt due to the Crown shall affect the debtor's real estate in any other manner than such estate may be affected by the laws of Scotland, and that the validity of the Crown's titles to any honours or lands shall continue to be tried by the court of Session. The Barons have the powers of the Scots court transferred to them, of passing the accounts of sheriffs, or other officers who have the execution of writs issuing from, or returnable to the court of Exchequer, and of receiving resignations, and passing signatures of charters, gifts of casualties, &c. But though all these must pass in Exchequer, it is the court of Session only who can judge of their preference after they are completed.

Admiral Court:

15. The jurisdiction of the Admiral in maritime causes was of old concurrent with that of the Session. The High-admiral is declared the King's Justice-General upon the seas, on fresh water within flood mark, and in all harbours and creeks. His civil jurisdiction extends to all maritime causes, and so comprehends questions of charter-parties, freights, salvages, bottomries, &c. He exercises this supreme jurisdiction by a delegate, the judge of the high-court of admiralty; and he may also name inferior deputies, whose jurisdiction is limited to particular districts, and whose sentences are subject to the review of the high court. In causes which are declared to fall under the Admiral's cognizance, his jurisdiction is now sole; in so much that the Session itself, though they may review his decrees by suspension or reduction, can- not carry a maritime question from him by advocation. The Admiral has acquired, by usage, a jurisdiction in mercantile causes, even where they are not strictly maritime, cumulative with that of the judge-ordinary.

16. All our supreme courts have seals or signets, proper to their several jurisdictions. The courts of Session and Justiciary used formerly the same signet, which was called the King's, because the writs issuing from thence run in the King's name; and though the Justiciary got at last a separate signet for itself, yet that of the Session still retains the appellation of the King's Signet. In this office are sealed summonses for citation, letters of executorial diligence, or for staying or prohibiting of diligence, and generally whatever passes by the warrant of the Session, and is to be executed by the officers of the court. All these must, before sealing, be signed by the writers or clerks of the signet: But letters of diligence, where they are granted in a depending process, merely for probation, though they pass by the signet, must be subscribed by a clerk of Session. The clerks of the signet also prepare and subscribe all signatures of charters, or other royal grants, which pass in Exchequer.

Tit. 4. Of the inferior Judges and Courts of Scotland.

Sheriff.

Sheriff, from reeve, governor, and fleer, to cut or divide, is the judge ordinary constituted by the Crown over a particular division or county. The Sheriff's jurisdiction, both civil and criminal, was, in ancient times, nearly as ample within his own territory as that of the supreme courts of Session and Justiciary was over the whole kingdom.

2. His civil jurisdiction now extends to all actions upon contracts, or other personal obligations, forthcomings, pointings of the ground, mails and duties, and to all possessory actions, as removings, ejections, spolizies, &c., to all brieves issuing from the chancery, as of inquest, terce, division, tutory, &c. and even to adjudications of land-estates, when proceeding on the renunciation of the apparent heir. His present criminal jurisdiction extends to certain capital crimes, as theft, and even murder, though it be one of the pleas of the Crown; and he is competent to most questions of public police, and has a cumulative jurisdiction with justices of the peace in all riots and breaches of the peace.

3. Sheriffs have ministerial power, in virtue of which, they return juries, in order to the trial of causes that require juries. The writs for electing members of parliament have been, since the union, directed to the Sheriffs, who, after they are executed, return them to the crown-office from whence they issued. They also execute writs issuing from the court of Exchequer; and in general, take care of all estates, duties, or casualties that fall to the Crown within their territory, for which they must account to the Exchequer.

Lord of Regality.

4. A Lord of Regality was a magistrate, who had a grant of lands from the Sovereign, with royal jurisdiction annexed thereto. His civil jurisdiction was equal to that of a Sheriff; his criminal extended to the four pleas of the crown. He had a right to replege or reclaim all criminals, subject to his jurisdiction, from any other competent court, though it were the Justiciary itself, to his own. He had also right, according to the most common opinion, to the single escheat of all denounced persons residing within his jurisdiction, even though such privilege had not been expressed in the grant of regality.

Stewart.

5. The Stewart was the magistrate appointed by the King over such regality lands as happened to fall to the Crown by forfeiture, &c. and therefore the Stewart's jurisdiction was equal to that of a regality. The two stewartries of Kirkudbright; and of Orkney and Zetland, make shires or counties by themselves, and send each a representative to parliament.

Bailie.

6. Where lands, not erected into a regality, fell into the King's hands, he appointed a Bailie over them, whose jurisdiction was equal to that of a Sheriff.

7. By the late jurisdiction act 20 Geo. II. all heritable regalities and baileries, and all such heritable stewardships and stewartries as were only parts of a shire, are dissolved; and the powers formerly vested in them are made to devolve upon such of the King's courts as these powers would have belonged to if the jurisdictions dissolved had never been granted. All stewardships and stewartries that were no part of a shire, where they had been granted, either heritably or for life, are returned and annexed to the crown. No High Sheriff or Stewart can hereafter judge personally in any cause. One Sheriff or Stewart-depute is to be appointed by the King in every shire, who must be an advocate of three years standing; and after a certain term not yet expired, all commissions to these deputies are to be granted for life.

Prince of Scotland.

8. The appanage, or patrimony, of the Prince of Scotland, has been long erected into a regality-jurisdiction, called the Principality. It is personal to the King's eldest son, upon whose death or succession it returns to the Crown. The prince has, or may have, his own chancery, from which his writs issue, and may name his own chamberlain and other officers for receiving and managing his revenue. The vassals of the Prince are intitled to elect, or to be elected members of Parliament for counties, equally with those who hold of the Crown.

Justices of the Peace.

9. Justices of the Peace are magistrates named by the Sovereign over the several counties of the kingdom, for the special purpose of preserving the public peace. Anciently their power reached little farther than to bind over disorderly persons for their appearance before the Privy Council or Justiciary; afterwards they were authorised to judge in breaches of the peace, and in most of the laws concerning public policy. They may compel workmen or labourers to serve for a reasonable fee, and they can condemn masters in the wages due to their servants. They have power to judge in questions of highways, and to call out the tenants with their cotters and servants to perform six days' work yearly for upholding them.

10 Since the Union our justices of the peace, over and above the powers committed to them by the laws of Scotland, are authorized to exercise whatever belonged to the office of an English justice of the peace, in relation to the public peace. From that time, the Scots and the English commissions have run in the same style, which contain powers to inquire into, and judge in all capital crimes, witchcrafts, felonies, and several others specially enumerated, with this limitation subjoined, of which justices of the peace may lawfully inquire. Two justices can constitute a court. Special statute has given the cognizance of several matters of excise to the justices, in which their sentences are final.

BOROUGHS.

11 A borough is a body-corporate, made up of the inhabitants of a certain tract of ground erected by the Sovereign, with jurisdiction annexed to it. Boroughs are erected, either to be holden of the Sovereign himself, which is the general case of royal boroughs; or of the superior of the lands erected, as boroughs of regality and barony. Boroughs royal have power, by their charters, to choose annually certain office-bearers or magistrates; and in boroughs of regality and barony, the nomination of magistrates is, by their charter, lodged sometimes in the inhabitants, sometimes in the superior Bailies of boroughs have jurisdiction in matters of debt, services, and questions of possession betwixt the inhabitants. Their criminal jurisdiction extends to petty riots, and reckless fire-raising. The Dean of Guild is that magistrate of a royal borough who is head of the merchant-company; he has the cognizance of mercantile causes within borough, and the inspection of buildings, that they encroach neither on private property, nor on the public streets; and he may direct insufficient houses to be pulled down. His jurisdiction has no dependance on the court of the borough, or bailie-court.

BARONS.

12 A Baron, in the large sense of that word, is one who holds his lands immediately of the Crown; and, as such, had, by our ancient constitution, right to a seat in parliament, however small his freehold might have been. The lesser Barons were exempted from the burden of attending the service of parliament. This exemption grew insensibly into an utter disability in all the lesser Barons from sitting in parliament, without election by the county; though no statute is to be found expressly excluding them.

13 To constitute a Baron in the strict law-sense, his lands must have been erected, or at least confirmed by the King, in liberam baroniam; and such Baron had a certain jurisdiction, both civil and criminal, which he might have exercised, either in his own person, or by his bailie.

14 By the late jurisdiction-act, the civil jurisdiction of a Baron is reduced to the power of recovering, from his vassals and tenants, the rents of his lands, and of condemning them in mill services; and of judging in causes where the debt and damages do not exceed 40 s. Sterling. His criminal jurisdiction is, by the same statute, limited to assaults, batteries, and other smaller offenses, which may be punished by a fine not exceeding 20 s. Sterling, or by setting the offender in the stocks in the day-time not above three hours; the fine to be levied by pointing, or one month's imprisonment. The jurisdiction formerly competent to proprietors of mines, and coal or salt works, over their workmen, is restored; and also that which was competent to proprietors who had the right of fairs or markets, for correcting the disorders that might happen during their continuance; provided they shall exercise no jurisdiction inferring the loss of life or demembration.

CONSTABULARIES.

15 The High Constable of Scotland had no fixed territorial jurisdiction, but followed the court; and had, jointly with the Marischal, the cognizance of all crimes committed within two leagues of it. All other constabularies were dependent on him: These had castles, and sometimes boroughs subject to their jurisdiction, as Dundee, Montrose, &c., and amongst other powers, now little known, they had the right of exercising criminal jurisdiction within their respective territories during the continuance of fairs. By the late jurisdiction-act, all jurisdictions of constabulary are dissolved, except that of High Constable.

LYON KING OF ARMS.

16 The office of the Lyon King of Arms was chiefly ministerial, to denounce war, proclaim peace, carry public messages, &c. But he has also a right of jurisdiction, whereby he can punish all who usurp arms contrary to the law of arms, and deprive or suspend messengers, heralds, or pursuivants, (who are officers named by himself;) but he has no cognizance of the damage arising to the private party through the messenger's fault. Messengers are subservient to the supreme courts of session and judiciary; and their proper business is to execute all the King's letters either in civil or criminal causes.

17 Our judges had, for a long time, no other salaries or appointments than what arose from the sentences they pronounced. Our criminal judges applied to their own use the fines or forfeitures of their several courts; and regaliies had a right to the single echeat of all persons denounced, who resided within their jurisdiction; and our civil judges got a certain proportion of the sum contained in the decree pronounced. But these were all prohibited upon regular salaries being settled upon our judges.

Tit. 5. Of Ecclesiastical Persons.

The Pope, or bishop of Rome, was long acknowledged, over the western part of Christendom, for the head of the Christian church. The papal jurisdiction was abolished in Scotland anno 1560. The King was, by act 1669, declared to have supreme authority over all persons, persons, and in all causes ecclesiastical; but this act was repealed by 1690, as inconsistent with Presbyterian church-government, which was then upon the point of being established.

2. Before the reformation from Popery, the clergy was divided into secular and regular. The secular had a particular tract of ground given them in charge, within which they exercised the pastoral office of bishop, presbyter, or other church officer. The regular clergy had no cure of souls, but were tied down to residence in their abbeys, priories, or other monasteries: And they got the name of regular, from the rules of mortification to which they were bound, according to the institution of their several orders. Upon the vacancy of any benefice, whether secular or regular, Commendators were frequently appointed to levy the fruits, as factors or stewards during the vacancy. The Pope alone could give the higher benefices in commendam; and at last, from the plenitude of his power, he came to name commendators for life, and without any obligation to account. After the reformation, several abbeys and priories were given by James VI. in perpetuam commendam, to laics.

3. Upon abolishing the Pope's authority, the regular clergy was totally suppressed; and, in place of all the different degrees which distinguished the secular clergy, we had at first only parochial Presbyters or Ministers, and superintendants, who had the oversight of the church within a certain district: Soon thereafter the church-government became episcopal, by Archbishops, Bishops, &c. and after some intermediate turns, is now Presbyterian by kirk-seffions, presbyteries, synods, and general assemblies.

4. Prelate, in our statutes, signifies a Bishop, Abbot, or other dignified clergyman, who in virtue of his office had a seat in parliament. Every Bishop had his Chapter, which consisted of a certain number of the ministers of the diocese, by whose assistance he managed the affairs of the church within that district. The nomination of Bishops to vacant sees has been in the crown since 1540, though under the appearance of continuing the ancient right of election, which was in the Chapter. The confirmation by the Crown under the great seal, of the Chapter's election, confirmed a right to the spirituality of the benefice; and a second grant, upon the consecration of the Bishop-elect, gave a title to the temporality; but this second grant fell soon into disuse.

5. He who founded or endowed a church was intitled to the right of patronage thereof, or advocatio ecclesiae; whereby, among other privileges, he might present a churchman to the cure, in case of a vacancy. The presentee, after he was received into the church, had a right to the benefice proprio jure; and if the church was parochial, he was called a parson. The Pope claimed the right of patronage of every kirk, to which no third party could shew a special title; and since the reformation, the Crown, as coming in place of the Pope, is considered as universal patron, where no right of patronage appears in a subject. Where two churches are united, which had different patrons, each patron presents by turns.

6. Gentlemen of estates frequently founded colleges or collegiate churches, the head of which got the name of Provost, under whom were certain Prebendaries or Canons, who had their several stalls in the church, where they sung masses. Others of lesser fortunes founded chaplainries, within the precincts of a parochial church; or altarages, which were donations granted for the singing of masses for deceased friends at particular altars in a church. Though all these were suppressed upon the reformation, their founders continued patrons of the endowments; out of which they were allowed to provide bursars, to be educated in any of the universities.

7. Where a fund is gifted for the establishment of a second minister in a parish where the cure is thought too heavy for one, the patronage of such benefice does not belong to the donor, but to him who was patron of the church, unless either where the donor has reserved to himself the right of patronage in the donation, or where he and his successors have been in the constant use of presenting the second minister, without challenge from the patron. The right of presenting incumbents was by 1690, c. 23. taken from patrons, and vested in the heirs and elders of the parish, upon payment to be made by the heirs to the patron of 600 merks; but it was again restored to patrons, 10. An. c. 12. with the exception of the presentations sold in pursuance of the former act.

8. Patrons were not simply administrators of the church; for they held the fruits of the vacant benefice as their own, for some time after the reformation. But that right is now no more than a trust in the patron, who must apply them to pious uses within the parish, at the sight of the heirs, yearly as they fall due. If he fail, he loses his right of administering the vacant stipend for that and the next vacancy. The king, who is exempted from this rule, may apply the vacant stipend of his churches to any pious use, though not within the parish. If one should be ordained to a church, in opposition to the presentee, the patron, whose civil right cannot be affected by any sentence of a church-court, may retain the stipend as vacant. Patrons are to this day intitled to a seat and burial-place in the churches of which they are patrons; and to the right of all the teinds of the parish not heritably disposed.

9. That kirks may not continue too long vacant, the patron must present to the presbytery, (formerly to the Bishop), a fit person for supplying the cure, within six months from his knowledge of the vacancy, otherwise the right of presentation accrues to the presbytery jure devoluto. Upon presentation by the patron, the Bishop collated or conferred the benefice upon the presentee by a writing, in which he appointed certain ministers of the diocese to induce or institute him into the church; which induction completed his right, and was performed by their placing him in the pulpit, and delivering him the bible and the keys of the church. The bishop collated to the churches of which himself was patron, pleno jure, or without presentation; which he also did in mensal churches, whose patronages were sunk, by the churches being appropriated to him, as part of his patrimony. Since the revolution, a judicial act of admission by the presbytery, proceeding either upon a presentation, or up- on a call from the heritors and elders, or upon their own jus devolutum, compleats the minister's right to the benefice.

10. Soon after the reformation, the Popish churchmen were prevailed upon to resign in the sovereign's hands, a third of their benefices, which was appropriated, in the first place, for the subsistence of the reformed clergy. To make this fund effectual, particular localities were assigned in every benefice, to the extent of a third, called the assumption of thirds; and for the farther support of ministers. Queen Mary made a grant in their favour of all the small benefices not exceeding 300 merks. Bishops, by the act which restored them to the whole of their benefices, were obliged to maintain the ministers within their dioceses, out of the thirds; and in like manner, the laic titulars, who got grants of the teinds, became bound, by their acceptation thereof, to provide the kirks within their erections in competent stipends.

11. But all these expedients for the maintenance of the clergy having proved ineffectual, a commission of parliament was appointed in the reign of James VI. for planting kirks, and modifying stipends to ministers out of the teinds; and afterwards several other commissions were appointed, with the more ample powers of dividing large parishes, erecting new ones, &c. all of which were, in 1707, transferred to the court of Session, with this limitation, that no parish should be disjoined, nor new church erected, nor old one removed to a new place, without the consent of three fourths of the heritors, computing the votes, not by their numbers, but by the valuation of their rents within the parish. The Judges of Session, when sitting in that court, are considered as a commission of Parliament, and have their proper clerks, macers, and other officers of court, as such.

12. The lowest stipend that could be modified to a minister by the first commission was 500 merks, or five chalders of victual, unless where the whole teinds of the parish did not extend so far: And the highest was 1000 merks, or ten chalders. The parliament 1633 raised the minimum to eight chalders of victual, and proportionably in silver; but as neither the commission appointed by that act, nor any of the subsequent ones, was limited as to the maximum, the commissioners have been in use to augment stipends considerably above the old maximum, where there is sufficiency of free teinds, and the cure is burdensome, or living expensive.

13. Where a certain quantity of stipend is modified to a minister out of the teinds of a parish, without proportioning that stipend among the several heritors, the decree is called a decree of modification: But where the commissioners also fix the particular proportions payable by each heritor, it is a decree of modification and locality. Where a stipend is only modified, it is secured on the whole teinds of the parish, so that the minister can insist against any one heritor to the full extent of his teinds, such heritor being always entitled to relief against the rest, for what he shall have paid above his just share: But where the stipend is also located, each heritor is liable in no more than his own proportion.

14. Few of the reformed ministers were, at first, provided with dwelling houses; most of the Popish clergy having, upon the first appearance of the reformation, let their manse in feu, or in long tacks: Ministers therefore got a right, by 1563, to as much of these manse as would serve them, notwithstanding such feus or tacks: Where there was no parson's nor vicar's manse, one was to be built by the heritors, at the sight of the bishop, (now the Presbytery,) the charge not exceeding L. 1000 Scots, nor below 500 merks. Under a manse are comprehended stable, barn, and byre, with a garden; for all which, it is usual to allow half an acre of ground.

15. Every incumbent is intitled at his entry to have his manse put into good condition; for which purpose, the presbytery may appoint a visitation by tradesmen, and order estimates to be laid before them of the sums necessary for the repairing, which they may proportion among the heritors according to their valuations. The presbytery, after the manse is made sufficient, ought, upon application of the heritors, to declare it a free manse, which lays the incumbent under an obligation to uphold it in good condition during his incumbency; otherwise, he or his executors shall be liable in damages; But they are not bound to make up the loss arising from the necessary decay of the building by the waste of time.

16. All ministers, where there is any landward or country-parish, are, over and above their stipend, intitled to a glebe, which comprehends four acres of arable land, or sixteen sowms of pasture-ground where there is no arable land, (a sowm is what will graze ten sheep or one cow), and is to be designed or marked by the bishop or presbytery out of such kirk lands within the parish as lie nearest to the kirk, and, in default of kirk-lands, out of temporal lands.

17. A right of relief is competent to the heritors, whose lands are set off for the manse or glebe, against the other heritors of the parish. Manse and glebes, being once regularly designed, cannot be feued or sold by the incumbent in prejudice of his successors, which is in practice extended even to the case where such alienation evidently appears profitable to the benefice.

18. Ministers, besides their glebe, are intitled to grafs for a horse and two cows. And, if the lands, out of which the grafs may be designed, either lie at a distance, or are not fit for pasture, the heritors are to pay to the minister L. 20 Scots yearly as an equivalent. Ministers have also freedom of foggage, pasturage, fuel, seed, divot, loaning, and free fish and entry, according to use and wont: What these privileges are, must be determined by the local custom of the several parishes.

19. The legal terms at which stipends become due to ministers are Whitsunday and Michaelmas. If the incumbent be admitted to his church before Whitsunday, till which term the corns are not presumed to be fully sown, he has right to that whole year's stipend; and, if he is received after Whitsunday, and before Michaelmas, he is intitled to the half of that year; because, tho' the corns were sown before his entry, he was admitted before the term at which they are presumed to be reaped. By the same reason, if he dies or is transported before Whitsunday, he has right to no part of that year; if before Michaelmas, to the half; and if not till after Michaelmas, to the whole.

20. After 20. After the minister's death, his executors have right to the annat; which, in the sense of the canon law, was a right referred to the Pope, of the first year's fruits of every benefice. Upon a threatened invasion from England anno 1547, the annat was given by our Parliament, notwithstanding this right in the Pope, to the executors of such churchmen as should fall in battle in defence of their country: But the word annat or ann, as it is now understood, is the right which law gives to the executors of ministers, of half a year's benefice, over and above what was due to the minister himself for his incumbency.

21. The executors of a minister need make up no title to the ann by confirmation: Neither is the right assignable by the minister, or affectable with his debts; for it never belonged to him; but is a mere gratuity given by law to those whom it is presumed the deceased could not sufficiently provide; and law has given it expressly to executors: And if it were to be governed by the rules of succession in executory, the widow, in case of no children, would get one half; the other would go to the next of kin; and where there are children, they would be entitled to a third, and the other two thirds would fall equally among the children. But the court of Session, probably led by the general practice, have in this last case divided the ann into two equal parts, of which one goes to the widow, and the other among the children in capita.

22. From the great confidence that was, in the first ages of Christianity, reposed in churchmen, dying persons frequently committed to them the care of their estates, and of their orphan children; but these were simply rights of trust, not of jurisdiction. The clergy soon had the address to establish to themselves a proper jurisdiction, not confined to points of ecclesiastical right, but extending to questions that had no concern with the church. They judged, not only in tithes, patronages, testaments, breach of vow, scandal, &c.; but in questions of marriage and divorce, because marriage was a sacrament; in tochers, because these were given in consideration of marriage; in all questions where an oath intervened, on pretence that oaths were a part of religious worship, &c. As churchmen came, by the means of this extensive jurisdiction, to be diverted from their proper functions, they committed the exercise of it to their officials or commissaries: Hence the Commissary-court was called the Bishop's court, and Curia Christianitatis; it is also styled the Consistorial Court, from Consistory, a name first given to the court of appeals of the Roman Emperors, and afterwards to the courts of judicature held by churchmen.

23. At the reformation, all episcopal jurisdiction, exercised under the authority of the Bishop of Rome, was abolished. As the course of justice in consistorial causes was thereby stopped, Q. Mary, besides naming a Commissary for every diocese, did, by a special grant, establish a new Commissary-court at Edinburgh, consisting of four judges or commissaries. This court is vested with a double jurisdiction; one diocesan, which is exercised in the special territory contained in the grant, viz. the counties of Edinburgh, Haddington, Linlithgow, Peebles, and a part part of Stirling-shire; and another universal, by which the judges confirm the testaments of all who die in foreign parts, and may reduce the decrees of all inferior Commissaries, provided the reduction be pursued within a year after the decree: Bishops, upon their reëfttlement in the reign of James VI were restored to the right of naming their several Commissaries.

24. As the clergy, in times of Popery, assumed a jurisdiction independent of the civil power or any secular court, their sentences could be reviewed only by the Pope, or judges delegated by him; so that, with regard to the courts of Scotland, their jurisdiction was supreme. But by an act 1560, the appeals from our Bishops' courts, that were then depending before the Roman consistories, were ordained to be decided by the court of Session: And by a posterior act 1609, the Session is declared the King's great Consistory, with power to review all sentences pronounced by the Commissaries. Nevertheless, since that court had no inherent jurisdiction in consistorial causes, prior to this statute; and since the statute gives them a power of judging only by way of advocation, they have not, to this day, any proper consistorial jurisdiction in the first instance; neither do they pronounce sentence, in any consistorial cause brought from the Commissaries, but remit it back to them with instructions. By the practice immediately subsequent to the act before quoted, they did not admit advocations from the inferior Commissaries, till the cause was brought before the Commissaries of Edinburgh; but that practice is now in disuse.

25. The Commissaries retain to this day an exclusive power of judging in declarators of marriage, and of the nullity of marriage; in actions of divorce and of non-adherence, of adultery, bastardy, and confirmation of testaments; because all these matters are still considered to be properly consistorial. Inferior Commissaries are not competent to questions of divorce, under which are comprehended questions of bastardy and adherence, when they have a connection with the lawfulness of marriage, or with adultery.

26. Commissaries have now no power to pronounce decrees in absence for any sum above L. 40 Scots, except in causes properly consistorial: but they may authenticate tutorial and curatorial inventories; and all bonds, contracts, &c. which contain a clause for registration in the books of any judge competent, and protests on bills, may be registered in their books.

Tit. 6. Of Marriage.

Persons, when considered in a private capacity, are chiefly distinguished by their mutual relations; as husband and wife, tutor and minor, father and child, master and servant. The relation of husband and wife is constituted by marriage; which is the conjunction of man and wife, vowing to live inseparably till death.

2. Marriage is truly a contract, and so requires the consent of parties. Idiots, therefore, and furious persons cannot marry. As no person is presumed capable of consent within the years of pupillarity, which, by our law, lasts till the age of fourteen in males, and twelve in females, marriage cannot be contracted by pupils; but if the married pair should cohabit after puberty, such acquiescence acquiescence gives force to the marriage. Marriage is fully perfected by consent; which, without consummation, founds all the conjugal rights and duties. The consent requisite to marriage must be de praesenti. A promise of marriage, (stipulatio sponsalitiae,) may be refused from, as long as matters are entire; but if anything be done by one of the parties, whereby a prejudice arises from the non-performance, the party refusing is liable in damages to the other. The canonists, and after them our courts of justice, explain a copula subsequent to a promise of marriage into actual marriage.

3. It is not necessary, that marriage should be celebrated by a clergymen. The consent of parties may be declared before any magistrate, or simply before witnesses: And though no formal consent should appear, marriage is presumed from the cohabitation, or living together at bed and board, of a man and woman who are generally reputed husband and wife. One's acknowledgment of his marriage to the midwife whom he called to his wife, and to the minister who baptized his child, was found sufficient presumptive evidence of marriage, without the aid, either of cohabitation, or of habite et repute. The father's consent was, by the Roman law, essential to the marriage of children in familia: But, by our law, children may enter into marriage, without the knowledge, and even against the remonstrances of a father.

4. Marriage is forbidden within certain degrees of blood. By the law of Moses, Levit. c. 18, which is made ours, seconds in blood, and all remoter degrees, may lawfully marry. By seconds in blood are meant first cousins. Marriage in the direct line is forbidden in infinitum; as it is also in the collateral line, in the special case where one of the parties is loco parentis to the other, as grand uncle, great grand-uncle, &c. with respect to his grand-niece, &c. The same degrees that are prohibited in consanguinity, are prohibited in affinity; which is the tie rising from marriage, betwixt one of the married pair and the blood relations of the other. Marriage also, where either of the parties is naturally unfit for generation, or stands already married to a third person, is ipso jure null.

5. To prevent bigamy and incestuous marriages, the church has introduced proclamation of banns; which is the ceremony of publishing the names and designations of those who intend to intermarry, in the churches where the bride and bridegroom reside, after the congregation is assembled for divine service; that all persons who know any objection to the marriage, may offer it. When the order of the church is observed, the marriage is called regular; when otherwise, clandestine.

6. By marriage, a society is created between the married pair, which draws after it a mutual communication of their civil interests, in as far as is necessary for maintaining it. As the society lasts only for the joint lives of the socii: therefore rights that have the nature of a perpetuity, which our law styles heritable, are not brought under the partnership or communion of goods; as a land-estate, or bonds bearing a yearly interest: It is only moveable subjects, or the fruits produced by heritable sub-

Vol. II. Numb. 64. them *subsidiares*, i.e., if her own separate estate is not sufficient to pay them off.

11. Where the wife is debtor in that sort of debt, which, if it had been due to her, would have excluded the *jus mariti*, e.g., in bonds bearing interest, the husband is liable only for the bygone interests, and those that may grow upon the debt during the marriage; because his obligations for her debts must be commensurated to the interest he has in her estate. It is the husband alone who is liable in personal diligence for his wife's debts, while the marriage subsists: The wife, who is the proper debtor, is free from all personal execution upon them while she is *vestita viro*.

12. The husband by marriage becomes the perpetual curator of the wife. From this right it arises, 1. That no suit can proceed against the wife, till the husband be cited for his interest. 2. All deeds, done by a wife without the husband's consent, are null; neither can she sue in any action without the husband's concurrence. Where the husband refuses, or by reason of forfeiture, &c., cannot concur; or where the action is to be brought against the husband himself, for performing his part of the marriage-articles; the judge will authorise her to sue in her own name. The effects arising from this curatorial power discover themselves even before marriage, upon the publication of banns; after which the bride, being no longer *fui juris*, can contract no debt, nor do any deed, either to the prejudice of her future husband, nor even to her own.

13. If the husband should either withdraw from his wife, or turn her out of doors; or if, continuing in family with her, he should by severe treatment endanger her life; the Commissioners will authorise a separation *a mensa et toro*, and give a separate alimony to the wife, suitable to her husband's estate, from the time of such separation, until either a reconciliation or a sentence of divorce.

14. Certain obligations of the wife are valid, notwithstanding her being *sub cura mariti*; *ex gr.* obligations arising from delict; for wives have no privilege to commit crimes. But if the punishment resolves into a pecuniary mulct, the execution of it must, from her incapacity to fulfil, be suspended till the dissolution of the marriage, unless the wife has a separate estate exempted from the *jus mariti*.

15. Obligations arising from contract, affect either the person or the estate. The law has been so careful to protect wives, while *sub cura mariti*, that all personal obligations granted by a wife, though with the husband's consent, as bonds, bills, &c., are null; with the following exceptions: 1. Where the wife gets a separate *peculium* or stock, either from her father or a stranger, for her own or her children's alimony, she may grant personal obligations in relation to such stock; and by stronger reason, personal obligations granted by a wife are good, when her person is actually withdrawn from her husband's power, by a judicial separation. 2. A wife's personal obligation, granted in the form of a deed *inter vivos*, is valid, if it is not to take effect till her death. 3. Where the wife is by the husband *praeposita negotiis*, entrusted with the management, either of a particular branch of business, or of his whole affairs, all the contracts she enters into in the exercise of her *praeitura*, are effectual, even though they be not reduced to writing, but should arise merely *ex re*, from furnishings made to her: But such obligations have no force against the wife; it is the husband only, by whose commission the acts, who is thereby obliged.

16. A wife, while she remains in family with her husband, is considered as *praeposita negotiis domestici*; and consequently may provide things proper for the family, for the price whereof the husband is liable, though they should be misapplied, or though the husband should have given her money to provide them elsewhere. A husband, who suspects that his wife may hurt his fortune by high living, may use the remedy of inhibition against her; by which all persons are interpellated from contracting with her, or giving her credit. After the completing of this diligence, whereby the *praeitura* falls, the wife cannot bind the husband, unless for such reasonable furnishings as he cannot instruct that he provided her with *allodium*. As every man, and consequently every husband, has a right to remove his managers at pleasure, inhibition may pass at the suit of the husband against the wife, though he should not offer to justify that measure by an actual proof of the extravagance or profuseness of her temper.

17. As to rights granted by the wife affecting her estate; she has no moveable estate, except her *paraphernalia*; and these she may alien or impignorate, with consent of the husband. She can, without the husband, bequeath by testament her share of the goods in communion; but she cannot dispose of them *inter vivos*. A wife can lawfully oblige herself, in relation to her heritable estate, with consent of her husband; for though her person is in some sense sunk by the marriage, she continues capable of holding a real estate; and in such obligations, her estate is considered, and not her person. A husband, though he be curator to his wife, can, by his acceptance or intervention, authorise rights granted by her in his own favour; for a husband's curacy is not intended only for the wife's advantage, but is considered as a mutual benefit to both.

18. All donations, whether by the wife to the husband, or by the husband to the wife, are revocable by the donor; but if the donor dies without revocation, the right becomes absolute. Where the donation is not pure, it is not subject to revocation: Thus, a grant made by the husband, in consequence of the natural obligation that lies upon him to provide for his wife, is not revocable, unless in so far as it exceeds the measure of a rational settlement; neither are remuneratory grants revocable, where mutual grants are made in consideration of each other, except where an onerous cause is simulated, or where what is given *hinc inde* bears no proportion to each other. All voluntary contracts of separation, by which the wife is provided in an yearly alimony, are effectual as to the time past, but revocable either by the husband or wife.

19. As wives are in the strongest degree subject to the influence of their husbands, third parties, in whose favours they had made grants, were frequently vexed with actions of reduction, as if the grant had been extorted from the wife, through the force or fear of the husband. husband. To secure the grantees against this danger, ratifications were introduced, whereby the wife, appearing before a judge, declares upon oath, her husband not present, that she was not induced to grant the deed *ex vi aut metu*. A wife's ratification is not absolutely necessary for securing the grantee: Law indeed allows the wife to bring reduction of any deed she has not ratified, upon the head of force or fear; of which, if she brings sufficient evidence, the deed will be set aside; but if she fails in the proof, it will remain effectual to the receiver.

20. Marriage, like other contracts, might, by the Roman law, be dissolved by the contrary consent of parties; but, by the law of Scotland, it cannot be dissolved till death, except by divorce, proceeding either upon the head of adultery, or of wilful desertion.

21. Marriage is dissolved by death, either within year and day from its being contracted, or after year and day. If it is dissolved within year and day, all rights granted in consideration of the marriage (unless guarded against in the contract) become void, and things return to the same condition in which they stood before the marriage; with this restriction, that the husband is considered as a *bona fide* possessor, in relation to what he has consumed upon the faith of his right; but he is liable to repay the tocher, without any deduction in consideration of his family expense during the marriage. If things cannot be restored on both sides, equity hinders the restoring of one party, and not the other.

22. Upon the dissolution of a marriage, after year and day, the surviving husband becomes the irrevocable proprietor of the tocher and the wife, where she survives, is intitled to her jointure, or to her legal provisions. She has also right to mournings, suitable to the husband's quality; and to alimony from the day of his death, till the term at which her different provision, either legal or conventional, commences. If a living child be procreated of the marriage, the marriage has the same effect as if it had subsisted beyond the year. A day is adjected to the year, *in majorem evidentiam*, that it may clearly appear that the year itself is elapsed; and therefore, the running of any part of the day, after the year, has the same effect as if the whole were elapsed. The legal right of courtesy competent to the surviving husband is explained below, Tit. xvi 28.

23. Divorce is such a separation of married persons, during their lives, as looses them from the nuptial tie, and leaves them at freedom to intermarry with others. But neither adultery, nor wilful desertion, are grounds which must necessarily dissolve marriage; they are only handles, which the injured party may take hold of, to be free. Cohabitation, therefore, by the injured party, after being in the knowledge of the acts of adultery, implies a passing from the injury; and no divorce can proceed, which is carried on by collusion betwixt the parties, lest, contrary to the first institution of marriage, they might disengage themselves by their own consent: and though after divorce, the guilty person, as well as the innocent, may contract second marriages; yet in the case of divorce upon adultery, marriage is by special statute prohibited betwixt the two adulterers.

24. Where either party has deserted from the other for four years together, that other may sue for adherence. If this has no effect, the church is to proceed, first by admonition, then by excommunication; all which previous steps are declared to be a sufficient ground for pursuing a divorce. *De praxi*, the Commisaries pronounce sentence in the adherence, after one year's desertion; but four years must intervene between the first desertion and the decree of divorce.

25. The legal effects of divorce on the head of desertion are, that the offending husband shall restore the tocher, and forfeit to the wife all her provisions, legal and conventional; and on the other hand, the offending wife shall forfeit to the husband her tocher, and all the rights that would have belonged to her, in the case of her survivance. This was also esteemed the rule in divorces upon adultery. But by a decision of the court of Session 1762, founded on a tract of ancient decisions recovered from the records, the offending husband was allowed to retain the tocher.

Tit. 7. Of Minors, and their Tutors and Curators.

1. The stages of life principally distinguished in law are, *pupillarity*, *puberty* or *minority*, and *majority*. A child is under pupillarity, from the birth till fourteen years of age, if a male, and till twelve, if a female. Minority begins where pupillarity ends, and continues till majority, which, by the law of Scotland, is the age of twenty-one years complete, both in males and females: But minority, in a large sense, includes all under age, whether pupils, or *puberes*. Because pupils cannot in any degree act for themselves, and minors seldom with discretion, pupils are put by law under the power of tutors, and minors may put themselves under the direction of curators. Tutor is a power and faculty to govern the person, and administer the estate of a pupil. Tutors are either nominate, of law, or dative.

2. A tutor nominee is he who is named by a father, in his testament or other writing, to a lawful child. Such tutor is not obliged to give caution for the faithful discharge of his office; because his fidelity is presumed to have been sufficiently known to the father.

3. If there be no nomination by the father, or if the tutors nominate do not accept, or if the nomination falls by death or otherwise, there is place for a tutor of law. This sort of tutor devolves upon the next agnate; by which we understand he who is nearest related by the father, though females intervene.

4. Where there are two or more agnates equally near to the pupil, he who is intitled to the pupil's legal succession falls to be preferred to the others. But as the law supposes, that he may not be over careful to preserve a life which stands in the way of his own interest, this sort of tutor is excluded from the custody of the pupil's person, which is commonly committed to the mother, while a widow, until the pupil be seven years old; and, in default of the mother, to the next cognate, i.e. the nearest relation by the mother. The tutor of law must be at least twenty-five years of age. He is served or declared by a jury of sworn men, who are called upon a brief issuing. ing from the Chancery, which is directed to any judge having jurisdiction. He must give security before he enters upon the management.

5. If no tutor of law demands the office, any person, even a stranger, may apply for a tuto-ry-dative. But because a tutor in law ought to be allowed a competent time to deliberate whether he will serve or not, no tuto-ry-dative can be given till the elapsing of a year from the time at which the tutor of law had first a right to serve. It is the king alone, as the father of his country, who gives tutors-dative, by his court of exchequer; and no gift of tutory can pass in exchequer, without the citation or consent of the next of kin to the pupil, both by the father and mother, nor till the tutor give security, recorded in the books of exchequer. There is no room for a tutor of law, or tutor-dative, while a tutor nominate can be hoped for; and tutors of law, or dative, even after they have begun to act, may be excluded by the tutor nominate, as soon as he offers to accept, unless he has expressly renounced the office. If a pupil without tutors of any kind, the court of Session will, at the suit of any kinsman, name a factor (reward) for the management of the pupil's estate.

6. After the years of pupillarity are over, the minor is considered as capable of acting by himself, if he has confidence enough of his own capacity and prudence. The only two cases in which curators are imposed upon minors are, first, where they are named by the father, in a state of health. 2. Where the father is himself alive; for a father is ipso jure, without any service, administrator, that is, both tutor and curator of law to his children, in relation to whatever estate may fall to them during their minority. This right in the father does not extend to grand-children, nor to such even of his immediate children as are consanguineous. Neither has it place in subjects which are left by a stranger to the minor, exclusive of the father's administration. If the minor chuses to be under the direction of curators, he must raise and execute a summons, citing at least two of his next of kin, to appear before his own judge-ordinary, upon nine days warning. At the day and place of appearance, he offers to the judge a list of those whom he intends for his curators: such of them as resolve to undertake the office, must sign their acceptance, and give caution; upon which an act of curatory is extracted.

7. These curators are styled ad negotia, to distinguish them from another sort called curators ad lites, who are authorized by the judge to concur with a pupil or minor in actions of law, either where he is without tutors and curators or where his tutors or curators are parties to the suit. This sort is not obliged to give caution, because they have no intermeddling with the minor's estate: they are appointed for a special purpose; and when that is over, their office is at an end. Women are capable of being tutors and curators, under the following restrictions; 1. The office of a female tutor or curator falls by her marriage, even though the nomination should provide otherwise; 2. No woman can be tutor of law. Papists are declared incapable of tutory or curatory. Where the minor has more tutors and curators than one, who are called in the nomination to the joint management, they must all concur in every act of administration: where a certain number is named for a quorum, that number must concur: where any one is named sine quo non, no act is valid without that one's special concurrence. But if they are named without any of these limitations, the concurrence of the majority of the nominees then alive is sufficient.

8. In this, tutory differs from curatory, that as pupils are incapable of consent, they have no person capable of acting; which defect the tutor supplies: but a minor pubes can act for himself. Hence, the tutor subscribes alone all deeds of administration: but in curatory, it is the minor who subscribes as the proper party; the curator does no more than consent. Hencealso, the persons of pupils are under the power, either of their tutors or of their nearest cognates; but the minor, after pupillarity, has the disposal of his own person, and may reside where he pleases. In most other particulars, the nature, the powers, and the duties of the two offices coincide. Both tutors and curators must, previous to their administration, make a judicial inventory, subscribed by them and the next of kin, before the minor's judge-ordinary, of his whole estate, personal and real; of which, one subscribed duplicate is to be kept by the tutors or curators themselves; another, by the next of kin on the father's side; and a third, by the next of kin on the mother's. If any estate belonging to the minor shall afterwards come to their knowledge, they must add it to the inventory within two months after their attaining possession thereof. Should they neglect this, the minor's debtors are not obliged to make payment to them; they may be removed from their offices as suspected, and they are intitled to no allowance for the sums disbursed by them in the minor's affairs, except the expense laid out upon the minor's entertainment, upon his lands and houses, and upon completing his titles.

9. Tutors and curators cannot grant leases of the minor's lands, to endure longer than their own office; nor under the former rental, without either a warrant from the court of Session, or some apparent necessity.

10. They have power to sell the minor's moveables; but cannot sell their pupil's land estate, without the authority of a judge. But the alienation of heritage by a minor, with consent of his curators, is valid.

11. Tutors and curators cannot, contrary to the nature of their trust, authorize the minor to do any deed for their own benefit; nor can they acquire any debt affecting the minor's estate: and, where a tutor or curator makes such acquisition, in his own name, for a less sum than the right is intitled to draw, the benefit thereof accrues to the minor.

12. By the Roman law, tutory and curatory, being munera publica, might be forced upon every one who had not a relevant ground of excuse; but, with us, the persons named to these offices may either accept or decline: and where a father, in ligie poulis, names certain persons both as tutors and curators to his children, though they have acted as tutors, they may decline the office of curatory. Tutors and curators having once accepted, are liable in diligence, that is, are accountable for the consequences of their neglect in any part of their duty. duty from the time of their acceptance. They are accountable singuli in solidum, i.e., every one of them is answerable, not only for his own diligence, but for that of his co-tutors; and any one may be sued without citing the rest: But he who is condemned in the whole, has action of relief against his co-tutors.

13. From this obligation to diligence, we may except,

1. Fathers or administrators in law, who, from the presumption that they act to the best of their power for their children, are liable only for actual intrusions.

2. Tutors and curators named by the father, with the special provisions, that they shall be liable barely for intrusions, not for omissions; and that each of them shall be liable only for himself, and not in solidum for the co-tutors: But this power of exemption from diligence, is limited to the estate defending from the father himself. Tutors or curators are not entitled to any salary or allowance for pains, unless a salary has been expressly contained in the testator's nomination; for their office is presumed gratuitous.

14. Though no person is obliged to accept the office of tutor or curator, yet having once accepted, he cannot throw it up or renounce it, without sufficient cause; but, if he should be guilty of misapplying the minor's money, or fail in any other part of his duty, he may be removed at the suit of the minor's next in kin, or by a co-tutor, or co-curator. Where the misconduct proceeds merely from indolence, or inattention, the court, in place of removing the tutor, either join a curator with him, or, if he be a tutor-nominate, they oblige him to give caution for his past and future management.

15. The offices of tutores and curatores expire by the pupil's attaining the age of puberty, or the minor's attaining the age of twenty-one years complete; and by the death either of the minor, or of his tutor or curator.

16. Deeds either by pupils, or by minors having curators without their consent, are null; but they oblige the grantors, in as far as relates to sums profitably applied to their use. A minor under curators can indeed make a testament by himself; but whatever is executed in the form of a deed inter vivos, requires the curator's consent. Deeds by a minor who has no curators, are as effectual as if he had curators, and signed them with their consent; he may even alien his heritage, without the interposition of a judge.

17. Minors may be restored against all deeds granted in their minority, that are hurtful to them. Deeds, in themselves void, need not the remedy of restitution; but where hurtful deeds are granted by a tutor in his pupil's affairs, or by a minor who has no curators, as these deeds subsist in law, restitution is necessary: And even where a minor, having curators, executes a deed hurtful to himself with their consent, he has not only action against the curators, but he has the benefit of restitution against the deed itself. The minor cannot be restored, if he does not raise and execute a summons for reducing the deed, ex capite minorisnitiatis et lesonis, before he be twenty-five years old. These four years, between the age of twenty-one and twenty-five, called quadriennium utile, are indulged to the minor, that he may have a reasonable time, from that period, when he is first presumed to have the perfect use of his reason, to consider with himself what deeds done in his minority have been truly prejudicial to him.

18. Questions of restitution are proper to the court of Session. Two things must be proved by the minor, in order to the reduction of the deed; 1. That he was minor when it was signed; 2. That he is hurt or lefed by the deed. This lesion must not proceed merely from accident; for the privilege of restitution was not intended to exempt minors from the common misfortunes of life; it must be owing to the imprudence or negligence of the minor, or his curator.

19. A minor cannot be restored against his own delict or fraud. 2. Restitution is excluded, if the minor, at any time after majority, has approved of the deed, either by a formal ratification, or tacitly by payment of interest, or by other acts inferring approbation. 3. A minor, who has taken himself to business, as a merchant shopkeeper, &c cannot be restored against any deed granted by him, in the course of that business, especially if he was proximus majorennitati at signing the deed. 4. According to the more common opinion, a minor cannot be restored in a question against a minor, unless some gross unfairness shall be qualified in the bargain.

20. The privilege of restitution does not always die with the minor himself. 1. If a minor succeeds to a minor, the time allowed for restitution is governed by the minority of the heir, not of the ancestor. 2. If a minor succeeds to a major, who was not full twenty-five, the privilege continues with the heir during his minority; but he cannot avail himself of the anni utiles, except in so far as they were unexpired at the ancestor's death. 3. If a major succeeds to a minor, he has only the quadriennium utile after the minor's death; and if he succeeds to a major dying within the quadriennium, no more of it can be profitable to him than what remained when the ancestor died.

21. No minor can be compelled to state himself as a defender, in any action, whereby his heritable estate flowing from ascendants may be evicted from him, by one pretending a preferable right.

22. This privilege is intended merely to save minors from the necessity of disputing upon questions of preference; it does not therefore take place, 1. Where the action is pursued on the father's falshood or delict. 2. Upon his obligation to convey heritage. 3. On his liquid bond for a sum of money, though such action should have the effect to carry off the minor's estate by adjudication. 4. Nor in actions pursued by the minor's superior, or upon feudal casualties. 5. This privilege cannot be pleaded in bar of an action which had been first brought against the father, and is only continued against the minor; nor where the father was not in the peaceable possession of the heritable subject at his death. Before the minor can plead it, he must be served heir to his father. The persons of pupils are protected from imprisonment on civil debts.

23. Curators are given, not only to minors, but in general to every one who, either through defect of judgment, or unfitness of disposition, is incapable of rightly managing his own affairs. Of the first sort, are idiots and furious persons. Idiots, or *fatui*, are entirely deprived of the faculty of reason. The distemper of the furious person does not consist in the defect of reason, but in an overheated imagination, which obstructs the application of reason to the purposes of life. Curators may be also granted to lunatics, and even to persons dumb and deaf, though they are of sound judgment, where it appears that they cannot exert it in the management of business. Every person, who is come of age, and is capable of acting rationally, has a natural right to conduct his own affairs. The only regular way, therefore, of appointing this sort of curators, is by a jury summoned upon a brief from the chancery; which is not, like the brief of common tutory, directed to any judge ordinary, but to the judge of the special territory where the person alleged to be fatuous or furious resides; that if he is truly of sound judgment, he may have an opportunity to oppose it: And, for this reason, he ought to be made a party to the brief. The curatory of idiots and furious persons belongs to the nearest agnate; but a father is preferred to the curatory of his fatuous son, and the husband to that of his fatuous wife, before the agnate.

24. A clause is inserted in the brief, for inquiring how long the fatuous or furious person has been in that condition; and the verdict to be pronounced by the inquest, is declared a sufficient ground, without farther evidence, for reducing all deeds granted after the period at which it appeared by the proof that the fatuity or fury began. But, as fatuous and furious persons are, by their very state, incapable of being obliged, all deeds done by them may be declared void, upon proper evidence of their fatuity at the time of signing, though they should never have been cognosed idiots by an inquest.

25. We have some few instances of the Sovereign's giving curators to idiots, where the next agnate did not claim; but such gifts are truly deviations from our law, since they pass without an inquiry into the state of the person upon whom the curatory is imposed. Hence the curator of law to an idiot, serving *quandocunque*, is preferred as soon as he offers himself, before the curator-dative. This sort of curatory does not determine by the lucid intervals of the person *sub cura*; but it expires by his death, or perfect return to a sound judgment; which last ought regularly to be declared by the sentence of a judge.

26. Persons, let them be ever so profuse, or liable to be imposed upon, if they have the exercise of reason, can effectually oblige themselves, till they are fettered by law. Interdiction is a legal restraint laid upon such persons from signing any deed to their own prejudice, without the consent of their curators or interdictors.

27. There could be no interdiction, by our ancient practice, without a previous inquiry into the person's condition. But as there were few who could bear the shame that attends judicial interdiction, however necessary the restraint might have been, voluntary interdiction has received the countenance of law; which is generally executed in the form of a bond, whereby the grantor obliges himself to do no deed that may affect his estate, without the consent of certain friends therein mentioned. Though the reasons inductive of the bond should be but gently touched in the recital, the interdiction stands good. Voluntary interdiction, though it be imposed by the sole act of the person interdicted, cannot be recalled at his pleasure: But it may be taken off, 1. By a sentence of the court of Session, declaring, either that there was, from the beginning, no sufficient ground for the restraint; or that the party is, since the date of the bond, become *rei suae providus*. 2. It falls, even without the authority of the Lords, by the joint act of the person interdicted, and his interdictors, concurring to take it off. 3. Where the bond of interdiction requires a certain number as a quorum, the restraint ceases if the interdictors shall be by death reduced to a lesser number.

28. Judicial interdiction is imposed by a sentence of the court of Session. It commonly proceeds on an action brought by a near kinsman to the party; and sometimes from the *nobile officium* of the court, when they perceive, during the pendency of a suit, that any of the litigants is, from the facility of his temper, subject to imposition. This sort must be taken off by the authority of the same court that imposed it.

29. An interdiction need not be served against the person interdicted; but it must be executed, or published by a messenger, at the market-cross of the jurisdiction where he resides, by publicly reading the interdiction there, after three oysles made for convoking the lieges. A copy of this execution must be affixed to the cross; and thereafter, the interdiction, with its execution, must be registered in the books, both of the jurisdiction where the person interdicted resides, and where his lands lie, or in the general register of the session, within forty days from the publication. An interdiction, before it is registered, has no effect against third parties, though they should be in the private knowledge of it; but it operates against the interdictors themselves, as soon as it is delivered to them.

30. An interdiction, duly registered, has this effect, that all deeds, done thereafter, by the person interdicted, without the consent of his interdictors, affecting his heritable estate, are subject to reduction. Registration, in the general register, secures all his lands from alienation, wherever they lie; but where the interdiction is recorded in the register of a particular shire, it covers no lands, except those situated in that shire. But persons interdicted have full power to dispose of their moveables, not only by testament, but by present deeds of alienation: And creditors, in personal bonds granted after interdiction, may use all execution against their debtor's person and moveable estate; such bonds being only subject to reduction, in so far as diligence against the heritable estate may proceed upon them.

31. All onerous or rational deeds granted by the person interdicted, are as effectual, even without the consent of the interdictor, as if the grantor had been laid under no restraint; but he cannot alter the succession of his heritable estate, by any settlement. Let it be ever so rational. No deed, granted with consent of the interdictors, is reducible, though the strongest lesion or prejudice to the grantor should appear: The only remedy competent, in such case, is an action by the grantor against his interdictors. tors, for making up to him what he has lost through their undue consent. It is no part of the duty of interdictors, to receive fums, or manage any estate; they are given merely ad auct-ritatem praëstandum, to interpose their authority to reasonable deeds; and so are accountable for nothing but their fraud or fault, in consenting to deeds hurtful to the person under their care.

32. The law concerning the state of children falls next to be explained. Children are either born in wedlock, or out of it. All children, born in lawful marriage or wedlock, are presumed to be begotten by the person to whom the mother is married; and consequently to be lawful children. This presumption is so strongly founded, that it cannot be defeated but by direct evidence that the mother's husband could not be the father of the child, e.g., where he is impotent, or was absent from the wife till within six lunar months of the birth. The canonists indeed maintain, that the concurring testimony of the husband and wife that the child was not procreated by the husband, is sufficient to elide this legal presumption for legitimacy; but it is an agreed point, that no regard is to be paid to such testimony, if it be made after they have owned the child to be theirs. A father has the absolute right of disposing of his children's person, of directing their education, and of moderate chastisement; and even after they become puberes, he may compel them to live in family with him, and to contribute their labour and industry, while they continue there, towards his service. A child who gets a separate stock from the father for carrying on any trade or employment, even though he should continue in the father's house, may be said to be emancipated or forisfamilinated, in so far as concerns that stock; for the profits arising from it are his own. Forisfamilination, when taken in this sense, is also inferred by the child's marriage, or by his living in a separate house, with his father's permission or goodwill. Children, after their full age of twenty-one years, become, according to the general opinion, their own masters; and from that period are bound to the father only by the natural ties of duty, affection, and gratitude. The mutual obligations between parents and children to maintain each other, are explained afterwards, Tit. 20.

33. Children, born out of wedlock, are styled natural children, or bastards. Bastards may be legitimated or made lawful, either, 1. By the subsequent intermarriage of the mother of the child with the father. And this sort of legitimation, intitles the child to all the rights of lawful children. The subsequent marriage, which produces legitimation, is considered by the law to have been entered into when the child legitimated was begotten; and hence, if he be a male, he excludes, by his right of primogeniture, the sons procreated after the marriage, from the succession of the father's heritage, though these sons were lawful children from the birth. Hence also, those children only can be thus legitimated, who are begotten of a woman whom the father might at that period have lawfully married. 2. Bastards are legitimated by letters of legitimation from the sovereign. See Tit. 29.

34. As to the power of masters over their servants: All servants now enjoy the same rights and privileges with other subjects, unless in so far as they are tied down by their engagements of service. Servants are either necessary or voluntary. Necessary are those whom law obliges to work without wages, of whom immediately. Voluntary servants engage without compulsion, either for mere subsistence, or also for wages. Those who earn their bread in this way, if they should stand off from engaging, may be compelled to it by the Justices of the peace, who have power to fix the rate of their wages.

35. Colliers, coal-bearers, and salters, and other persons necessary to collieries and saltworks, as they are particularly described by act 1661, are tied down to perpetual service at the works to which they have once entered. Upon a sale of the works, the right of their service is transferred to the new proprietor. All persons are prohibited to receive them into their service, without a testimonial from their last master; and if they desert to another work, and are redemanded within a year thereafter, he who has received them is obliged to return them within twenty-four hours, under a penalty. But though the proprietor should neglect to require the deserter within the year, he does not, by that short prescription, lose his property in him. Colliers, &c. where the colliery to which they are attached, is either given up, or not sufficient for their maintenance, may lawfully engage with others; but if that work shall be again set a going, the proprietor may reclaim them back to it.

36. The poor make the lowest class or order of persons. Indigent children may be compelled to serve any of the king's subjects without wages, till their age of thirty years. Vagrants and sturdy beggars may be also compelled to serve any manufacturer. And because few persons were willing to receive them into their service, public work-houses are ordained to be built for setting them to work. The poor who cannot work, must be maintained by the parishes in which they were born; and where the place of their nativity is not known, that burden falls upon the parishes where they have had their most common resort, for the three years immediately preceding their being apprehended, or their applying for the public charity. Where the contributions collected at the churches to which they belong, are not sufficient for their maintenance, they are to receive badges from the minister and kirk session, in virtue of which they may ask alms at the dwelling houses of the inhabitants of the parish.

Tit. 8. Of the Division of Rights, and the several ways by which a Right may be acquired.

The things or subjects to which persons have right, are the second object of law. The right of enjoying and disposing of a subject at one's pleasure, is called property. Proprietors are restrained by law from using their property emulously to their neighbour's prejudice. Every state or sovereign has a power over private property, called, by some lawyers, dominium eminent, in virtue of which, the proprietor may be compelled to sell his property for an adequate price, where an evident utility on the part of the public demands it.

2. Certain things are by nature itself incapable of appropriation, as the air, the light, the ocean, &c.; none of which can be brought under the power of any one person, though their use be common to all: Others are by law exempted from private commerce, in respect of the uses to which they are destined. Of this last kind are, 1. Res publicae, as navigable rivers, highways, bridges, &c.: the right of these is vested in the King, chiefly for the benefit of his people, and they are called regalia. 2. Res universitatis, things which belong in property to a particular corporation or society, and whose use is common to every individual in it; but both property and use are subject to the regulations of the society; as town-houses, corporation-halls, marketplaces, churchyards, &c. The lands or other revenue belonging to a corporation do not fall under this class, but are juris privati.

3. Property may be acquired, either by occupation or accession; and transferred by tradition or prescription: But prescription, being also a way of losing property, falls to be explained under a separate title. Occupation, or occupancy, is the appropriating of things which have no owner, by apprehending them, or seizing their possession. This was the original method of acquiring property, and continued, under certain restrictions, the doctrine of the Roman law, Quod nullius est, fit occupantis; but it can have no room in the feudal plan, by which the King is looked on as the original proprietor of all the lands within his dominions.

4. Even in that sort of moveable goods which are presumed to have once had an owner, this rule obtains by the law of Scotland, Quod nullius est, fit domini regis. Thus, the right of treasures hid underground, is not acquired by occupation, but accrues to the King. Thus also, where one finds strayed cattle or other moveables, which have been lost by the former owner, the finder acquires no right in them, but must give public notice thereof; and if within year and day after such notice, the proprietor does not claim his goods, they fall to the King, Sheriff, or other person, to whom the King has made a grant of such forfeits.

5. In that sort of moveables which never had an owner, as wild beasts, fowls, fishes, or pearls found on the shore, the original law takes place, that he who first apprehends becomes proprietor; so much, that though the right of hunting, fowling, and fishing, be restrained by statute, under certain penalties, yet all game, even what is caught in contravention of the law, becomes the property of the catcher, unless where the confiscation thereof is made part of the penalty: But whales thrown in or killed on our coasts, belong neither to those who kill them, nor to the proprietor of the grounds on which they are cast, but to the King, providing they are so large as that they cannot be drawn by a wane with six oxen.

6. Accession is that way of acquiring property, by which, in two things which have a connection with, or dependence on one another, the property of the principal thing draws after it the property of its accessory. Thus the owner of a cow becomes the owner of the calf; a house belongs to the owner of the ground on which it stands, though built with materials belonging to, and at the charge of another. The Romans excepted from this rule the case of paintings drawn on another man's board or canvas, in consideration of the excellency of the art; which exception our practice has for a like reason extended to similar cases.

7. Under accession is comprehended Specification; by which is meant, a person's making a new species or subject, from materials belonging to another. Where the new species can be again reduced to the matter of which it was made, law considers the former mass as still existing; and therefore, the new species, as an accessory to the former subject, belongs to the proprietor of that subject: But where the thing made cannot be so reduced, as in the case of wine, which cannot be again turned into grapes, there is no place for the fictio juris; and therefore the workmanship draws after it the property of the materials.

8. Though the new species should be produced from the Composition or confusion of different substances belonging to different proprietors, the same rule holds; but where the mixture is made by the common consent of the owners, such consent makes the whole a common property, according to the shares that each proprietor had formerly in the several subjects. Where things of the same sort are mixed without the consent of the proprietors, which cannot again be separated, e.g. two hogheads of wine, the whole likewise becomes a common property; but in the after-division, regard ought to be had to the different quality of the wines: If the things so mixed admit of a separation, e.g. two flocks of sheep, the property continues distinct.

9. Property is carried from one to another by Tradition; which is the delivery of possession by the proprietor, with an intention to transfer the property to the receiver. Two things are therefore requisite, in order to the transmitting of property in this way: 1. The intention or consent of the former owner to transfer it on some proper title of alienation, as sale, exchange, gift, &c. 2. The actual delivery in pursuance of that intention. The first is called the causa, the other the modus transversendi dominii: Which last is so necessary to the acquiring of property, that he who gets the last right, with the first tradition, is preferred, according to the rule, Traditionibus, non nudis pactis, transferuntur rerum dominia.

10. Tradition is either real, where the ipsa corpora of moveables are put into the hands of the receiver; or symbolical, which is used where the thing is incapable of real delivery, or even when actual delivery is only inconvenient. Where the possession or custody of the subject has been before with him to whom the property is to be transferred, there is no room for tradition.

11. Possession, which is essential both to the acquisition and enjoyment of property, is defined, the detention of a thing, with a design or animus in the detainer of holding it as his own. It cannot be acquired by the sole act of the mind, without real detention; but, being once acquired, it may be continued solo animo. Possession is either natural, or civil. Natural possession is, when one possesses by himself: Thus, we possess lands by cultivating them and reaping their fruits, houses by inhabiting them, moveables by detaining them in our hands. Civil possession is our holding the thing, either by the sole act of the mind, or by the hands of another who holds it in our name: Thus, the owner of a thing lent possesses it by the borrower; the proprietor of lands, by his tacksmen, trustee, or steward; &c. The same subject cannot be possessed entirely, or in jucidium, by two different persons at one and the same time; and therefore possession by an act of the mind ceases, as soon as the natural possession is so taken up by another, that the former possessor is not suffered to re-enter. Yet two persons may, in the judgment of law, possess the same subject, at the same time, on different rights: thus, in the case of a pledge, the creditor possesses it in his own name, in virtue of the right of impignoration; while the proprietor is considered as possessing, in and through the creditor, in so far as is necessary for supporting his right of property. The same doctrine holds in lifereenters, tacksmen, and, generally, in every case where there are rights affecting a subject, distinct from the property.

12. A bona fide possessor is he, who, though he is not really proprietor of the subject, yet believes himself proprietor on probable grounds. A mala fide possessor knows, or is presumed to know, that what he possesses is the property of another. A possessor bona fide acquired right, by the Roman law, to the fruits of the subject possessed, that had been reaped and consumed by himself, while he believed the subject his own. By our customs, perception alone, without consumption, secures the possessor: Nay, if he has tilled the ground, while his bona fides continued, he is entitled to reap the crop, propter curam et culturam. But this doctrine does not reach to civil fruits, e.g. the interest of money, which the bona fide receiver must restore, together with the principal, to the owner.

13. Bona fides necessarily ceaseth by the conscientia rei alienae in the possessor, whether such consciousness should proceed from legal interpellation, or private knowledge: Mala fides is sometimes induced, by the true owner's bringing his action against the possessor, sometimes not till litigation, and, in cases uncommonly favourable, not till sentence be pronounced against the possessor.

14. The property of moveable subjects is presumed by the bare effect of possession, until the contrary be proved; but possession of an immoveable subject, though for a century of years together, if there is no seisin, does not create even a presumptive right to it: Nulla seisin, nulla terra. Such subject is considered as caducary, and so accrues to the sovereign. Where the property of a subject is contested, the lawful possessor is intitled to continue his possession, till the point of right be discussed; and, if he has lost it by force or stealth, the judge will, upon summary application, immediately restore it to him.

15. Where a possessor has several rights in his person, affecting the subject possessed, the general rule is, that he may ascribe his possession to which of them he pleases; but one cannot ascribe his possession to a title other than that on which it commenced, in prejudice of him from whom his title flowed.

Tit. 9. Of heritable and moveable Rights.

For the better understanding the doctrine of this title,

Vol. II. No. 64.

it must be known, that by the law of Scotland, and indeed of most nations of Europe, since the introduction of seisin, where ever there are two or more in the same degree of consanguinity to one who dies intestate, and who are not all females, such rights belonging to the deceased as are either properly feudal, or have any resemblance to feudal rights, descend wholly to one of them, who is considered as his proper heir; the others, who have the name of next of kin or executors, must be contented with that portion of the estate which is of a more perishable nature. Hence has arisen the division of rights to be explained under this title: the subjects descending to the heir, are styled heritable; and those that fall to the next of kin, moveable.

2. All rights of, or affecting lands, under which are comprehended houses, mills, fishings, teinds; and all rights of subjects that are fundo annexa, whether compleated by seisin or not, are heritable ex sua natura. On the other hand, every thing that moves itself, or can be moved, and in general whatever is not united to land, is moveable: as household-furniture, corns, cattle, cash, arrears of rent and of interest, even though they should be due on a right of annual rent: For though the arrears last mentioned are secured on land, yet being presently payable, they are considered as cash.

3. Debts, (nomina debitorum), when due by bill, promissory note, or account, are moveable. When constituted by bond, they do not all fall under any one head; but are divided into heritable and moveable, by the following rules. All debts constituted by bond bearing an obligation to infest the creditor in any heritable subject in security of the principal sum and annual rent, or annual rent only, are heritable; for they not only carry a yearly profit, but are secured upon land.

4. Bonds merely personal, though bearing a clause of interest, are moveable as to succession; i.e. they go not to the heir, but to the next of kin or executors: but they are heritable with respect to the fief, and to the rights of husband and wife; that is, though, by the general rule, moveable rights fall under the communion of goods consequent upon marriage, and the movables of denounced persons fall to the crown or fief, by single ejectment, yet such bonds do neither, but are heritable in both respects.

5. Bonds taken payable to heirs and assignees, excluding executors, are heritable in all respects, from the destination of the creditor. But a bond, which is made payable to heirs, without mention of executors, descends, not to the proper heir in heritage, though heirs are mentioned in the bond, but to the executor; for the word heir, which is a generic term, points out him who is to succeed by law in the right; and the executor, being the heir in mobilitur, is considered as the person to whom such bond is taken payable. But where a bond is taken to heirs-male, or to a series of heirs, one after another, such bond is heritable, because its destination necessarily excludes executors.

6. Subjects originally moveable become heritable:

1. By the proprietor's destination. Thus, a jewel, or any other moveable subject, may be provided to the heir, from the right competent to every proprietor to settle his property on whom he pleases. 2. Moveable rights rights may become heritable, by the supervening of an heritable security: Thus, a sum due by a personal bond becomes heritable, by the creditor's accepting an heritable right for securing it, or by adjudging upon it.

7. Heritable rights do not become moveable by acceptance of moveable securities, the heritable right being in such case the jus nobilitatis, which draws the other after it.

8. Certain subjects partake, in different respects, of the nature both of heritable and moveable. Personal bonds are moveable in respect of succession, but heritable as to the fief, and husband and wife. All bonds, whether merely personal, or even heritable, on which no seisin has followed, may be affected at the suit of creditors, either by adjudication, which is a diligence proper to heritage; or by arrestment, which is peculiar to moveables. Bonds excluding executors, though they descend to the creditor's heir, are payable by the debtor's executors, without relief against the heir; since the debtor's succession cannot be affected by the determination of the creditor.

9. All questions, whether a right be heritable or moveable, must be determined according to the condition of the subject at the time of the ancestor's death. If it was heritable at that period, it must belong to the heir; if moveable, it must fall to the executor, without regard to any alterations that may have affected the subject in the intermediate period between the ancestor's death and the competition.

**Tit. 10. Of the Constitution of heritable Rights by Charter and Seisin.**

Heritable rights are governed by the feudal law, which owed its origin, or at least its first improvements, to the Longobards; whose kings, upon having penetrated into Italy, the better to preserve their conquests, made grants to their principal commanders of great part of the conquered provinces, to be again subdivided by them among the lower officers, under the conditions of fidelity and military service.

2. The feudal constitutions and usages were first reduced into writing, about the year 1150, by two lawyers of Milan, under the title of *Consuetudines Feudorum*. None of the German Emperors appear to have expressly confirmed this collection by their authority; but it is generally agreed, that it had their tacit approbation, and was considered as the customary feudal law of all the countries subject to the empire. No other country has ever acknowledged these books for their law; but each state has formed to itself such a system of feudal rules, as best agreed with the genius of its own constitution. In feudal questions, therefore, we are governed, in the first place, by our own statutes and customs; where these fail us, we have regard to the practice of neighbouring countries, if the genius of their law appears to be the same with ours; and should the question still remain doubtful, we may have recourse to those written books of the feus, as to the original plan on which all feudal systems have proceeded.

3. This military grant got the name, first of *beneficium*, and afterwards of *feudum*; and was defined a gratuitous right to the property of lands, made under the conditions of fealty and military service, to be performed to the granter by the receiver; the radical right of the lands still remaining in the granter. Under lands, in this definition, are comprehended all rights or subjects so connected with land, that they are deemed a part thereof; as houses, mills, fisheries, jurisdictions, patronages, &c. Though feus in their original nature were gratuitous, they soon became the subject of commerce; services of a civil or religious kind were frequently substituted in place of military; and now, of a long time, services of every kind have been entirely dispensed with, in certain feudal tenures. He who makes the grant is called the superior, and he who receives it the vassal. The subject of the grant is commonly called the feu; though that word is at other times, in our law, used to signify one particular tenure. See Tit. 11. The interest retained by the superior in the feu is styled *dominium directum* or the superiority; and the interest acquired by the vassal, *dominium utile*, or the property. The word *feu* is promiscuously applied to both.

4. Allodial goods are opposed to feus; by which are understood, goods enjoyed by the owner, independent of a superior. All moveable goods are allodial; lands only are so, when they are given without the condition of fealty or homage. By the feudal system, the sovereign, who is the fountain of feudal rights, reserves to himself the superiority of all the lands of which he makes the grant; so that, with us, no lands are allodial, except those of the King's own property, the superiorities which the King reserves in the property-lands of his subjects, and manors and glebes, the right of which is completed by the presbytery's designation, without any feudal grant.

5. Every person who is in the right of an immoveable subject, provided he has the free administration of his estate, and is not debarred by statute, or by the nature of his right, may dispose of it to another. Nay, a vassal, though he has only the *dominium utile*, can subfeud his property to a subvassal by a subaltern right, and thereby raise a new *dominium directum* in himself, subordinate to that which is in his superior; and so *in infinitum*. The vassal who thus subfeuds, is called the subvassal's immediate superior, and the vassal's superior is the subvassal's mediate superior.

6. All persons who are not disabled by law, may acquire and enjoy feudal rights. Papists cannot purchase a land estate by any voluntary deed. Aliens, who owe allegiance to a foreign prince, cannot hold a feudal right without naturalization; and therefore, where such privilege was intended to be given to favoured nations or persons, statutes of naturalization were necessary, either general, or special; or at least, letters of naturalization by the sovereign.

7. Every heritable subject, capable of commerce, may be granted in feu. From this general rule is excepted, 1. The annexed property of the Crown, which is not alienable without a previous dissolution in parliament. 2. Tailzied lands, which are devised under condition that they shall not be aliened. 3. An estate in hereditate jacente cannot be effectually aliened by the heir-apparent (i.e., not entered); but such alienation becomes becomes effectual upon his entry, the supervening right accruing in that case to the purchaser; which is a rule applicable to the alienation of all subjects not belonging to the vender at the time of the sale.

8. The feudal right, or, as it is called, investiture, is constituted by charter and seisin. By the charter, we understand that writing which contains the grant of the feudal subject to the vassal, whether it be executed in the proper form of a charter, or of a disposition. Charters by subject-superiors are granted, either, 1. A me de superiori meo, when they are to be holden, not of the granter himself, but of his superior. This sort is called a public holding, because vassals were in ancient times publicly received in the superior's court before the pares curiae or co-vassals. Or, 2. De me, where the lands are to be holden of the granter. These were called sometimes safe rights, from bar, lower; and sometimes private, because, before the establishment of our records, they were easily concealed from third parties; the nature of all which will be more fully explained, Tit. 14. An original charter is that by which the fee is first granted: A charter by progres is a renewed disposition of that fee to the heir or assignee of the vassal. All doubtful clauses in charters by progres ought to be construed agreeably to the original grant; and all clauses in the original charter are understood to be implied in the charters by progres, if there be no express alteration.

9. The first clause in an original charter, which follows immediately after the name and designation of the granter, is the narrative or recital, which expresses the causes indicative of the grant. If the grant be made for a valuable consideration, it is said to be onerous; if for love and favour, gratuitous. In the dispositive clause of a charter, the subjects made over are described either by special boundaries or march-stones, (which is called a bounding charter), or by such other characters as may sufficiently distinguish them. A charter regularly carries right to no subjects but what are contained in this clause, though they should be mentioned in some other clause of the charter.

10. The clause of tenendas (from its first words, tenendas praediarum terras) expresses the particular tenure by which the lands are to be holden. The clause of reddendo (from the words, reddendo inde annuatim) specifies the particular duty or service which the vassal is to pay or perform to the superior.

11. The clause of warrandice is that by which the granter obliges himself that the right conveyed shall be effectual to the receiver. Warrandice is either personal or real. Personal warrandice, where the granter is only bound personally, is either, 1. Simple, that he shall grant no deed in prejudice of the right; and this sort, which is confined to future deeds, is implied even in donations. 2. Warrandice from fact and deed, by which the granter warrants that the right neither has been, nor shall be hurt by any fact of his. Or, 3. Absolute warrandice contra omnes mortales, whereby the right is warranted against all legal defects in it, which may carry it off from the receiver, either wholly or in part. Where a sale of lands proceeds upon an onerous cause, the granter is liable in absolute warrandice, though no warrant-

dice be expressed; but in assignations to debts or decrees, no higher warrandice than from fact and deed is implied.

12. Gratuitous grants by the Crown imply no warrandice; and though warrandice should be expressed, the clause is ineffectual, from a presumption, that it has crept in by the negligence of the Crown's officers. But where the Crown makes a grant, not jure coronae, but for an adequate price, the sovereign is in the same case with his subjects.

13. Absolute warrandice, in case of eviction, affords an action to the grantee, against the granter, for making up to him all that he shall have suffered through the defect of the right; and not simply for his indemnification, by the granter's repayment of the price to him. But as warrandice is penal, and consequently stricti juris, it is not easily presumed, nor is it incurred from every light servitude that may affect the subject, far less does it extend to burdens which may affect the subject posterior to the grant, nor to those imposed by public statute, whether before or after, unless specially warranted against.

14. Real warrandice is either, 1. Express, whereby, in security of the lands principally conveyed, other lands, called warrandice-lands, are also made over, to which the receiver may have recourse in case the principal lands be evicted. Or, 2. Tacit, which is constituted by the exchange or excambion of one piece of ground with another; for, if the lands exchanged are carried off from either of the parties, the law itself, without any pactio, gives that party immediate recourse upon his own first-lands, given in exchange for the lands evicted.

15. The chapter concludes with a precept of seisin, which is the command of the superior granter of the right to his bailie, for giving seisin or possession to the vassal, or his attorney, by delivering to him the proper symbols. Any person, whose name may be inserted in the blank, left in the precept for that purpose, can execute the precept as bailie; and whoever has the precept of seisin in his hands, is presumed to have a power of attorney from the vassal, for receiving possession in his name.

16. A seisin is the instrument or attestation of a notary, that possession was actually given by the superior or his bailie, to the vassal or his attorney; which is considered as so necessary a solemnity, as not to be suppliable, either by a proof of natural possession, or even of the special fact that the vassal was duly entered to the possession by the superior's bailie.

17. The symbols, by which the delivery of possession is expressed, are, for lands, earth and stone; for rights of annual rent payable forth of land, it is also earth and stone, with the addition of a penny money; for parsonage teinds, a sheaf of corn; for jurisdictions, the book of the court; for patronages, a psalm-book, and the keys of the church; for fishings, net and coble; for mills, clap and happer, &c. The seisin must be taken upon the ground of the lands, except where there is a special dispensation in the charter from the Crown.

18. All seisons must be registered within sixty days after their date, either in the general register of seisons at Edinburgh, or in the register of the particular shire appointed by the act 1617; which, it must be observed, is not, in every case, the shire within which the lands lie. Bur- gage seisin are ordained to be registered in the books of the borough.

19. Unregistered seisin are ineffectual against third parties, but they are valid against the grantors and their heirs. Seisin regularly recorded, are preferable, not according to their own dates, but the dates of their registration.

20. Seisin necessarily supposes a superior by whom it is given; the right therefore which the sovereign, who acknowledges no superior, has over the whole lands of Scotland, is constituted, jure coronae, without seisin. In several parcels of land, that lie contiguous to one another, one seisin serves for all, unless the right of the several parcels be either holden of different superiors, or derived from different authors, or enjoyed by different tenures under the same superior. In discontiguous lands, a separate seisin must be taken on every parcel, unless the sovereign has united them into one tenantry, by a charter of union; in which case, if there is no special place expressed, a seisin taken on any part of the united lands will serve for the whole, even though they be situated in different shires. The only effect of union is, to give the discontiguous lands the same quality as if they had been contiguous, or naturally united; union, therefore, does not take off the necessity of separate seisin, in lands holden by different tenures, or the rights of which flow from different superiors, these being incapable of natural union.

21. The privilege of barony carries a higher right than union does, and consequently includes union in it as the lesser degree. This right of barony can neither be given, nor transmitted, unless by the Crown; but the quality of simple union, being once conferred on lands by the sovereign, may be communicated by the vassal to a subvassal. Though part of the lands united or erected into a barony, be sold by the vassal to be holden a me, the whole union is not thereby dissolved: what remains unsold retains the quality.

22. A charter, not perfected by seisin; is a right merely personal, which does not transfer the property. (See Tit. xx. i.) and a seisin of itself bears no faith, without its warrant: It is the charter and seisin joined together that constitutes the feudal right, and secures the receiver against the effect of all posterior seisin, even though the charters on which they proceed should be prior to his.

23. No quality which is deigned as a lien or real burden on a feudal right, can be effectual against singular successors, if it be not inserted in the investiture. If the creditors in the burden are not particularly mentioned, the burden is not real; for no perpetual unknown incumbrance can be created upon lands. Where the right itself is granted with the burden of the sum therein mentioned, or where it is declared void, if the sum be not paid against a day certain, the burden is real; but where the receiver is simply obliged by his acceptance to make payment, the clause is effectual only against him and his heirs.

Tit. ii. Of the several kinds of Holding.

Feudal subjects are chiefly distinguished by their different manners of holding, which were either ward, blanch, feu, or burgage. Ward-holding, which is now abolished by 20 Geo. II. c. 50, was that which was granted for military service. Its proper reddendo was services, or services used and wont; by which last was meant the performance of service whenever the superior's occasions required it. As all feudal rights were originally held by this tenure, ward-holding was in dubio. Hence, though the reddendo had contained some special service, or yearly duty, the holding was presumed ward, if another holding was not particularly expressed.

2. Feu holding is that whereby the vassal is obliged to pay to the superior a yearly rent in money or grain, and sometimes also in services proper to a farm, as ploughing, reaping, carriages for the superior's use, &c., nomine feudii firme. This kind of tenure was introduced for the encouragement of agriculture. The improvement of which was considerably obstructed by the vassal's obligation to military service. It appears to have been a tenure known in Scotland as far back as leges burgorum.

3. Blanch-holding is that whereby the vassal is to pay to the superior an edufory yearly duty, as a penny money, a role, a pair of gilt spurs, &c., merely in acknowledgment of the superiority, nomine alhe firme. This duty, where it is a thing of yearly growth, if it be not demanded within the year, cannot be exacted thereafter; and where the words, si petatur tantum, are subjoined to the reddendo, they imply a release to the vassal, whatever the quality of the duty may be, if it is not asked within the year.

4. Burgage holding is that, by which boroughs-royal hold of the sovereign the lands which are contained in their charters of erection. This, in the opinion of Craig, does not constitute a separate tenure, but is a species of ward-holding; with this speciality, that the vassal is not a private person, but a community: And indeed, watching and warding, which is the usual service contained in the reddendo of such charters, might be properly enough said, some centuries ago, to have been of the military kind. As the royal borough is the King's vassal, all burgage-holders hold immediately of the Crown: The magistrates therefore, when they receive the resignations of the particular burgesses, and give seisin to them, act, not as peripherals, but as the King's bailies specially authorised thereto.

5. Feudal subjects, granted to churches, monasteries, or other societies for religious or charitable uses, are said to be mortified, or granted ad manum mortuam; either because all casualties must necessarily be lost to the superior, where the vassal is a corporation, which never dies; or because the property of these subjects is granted to a dead hand, which cannot transfer it to another. In lands mortified in times of Popery to the church, whether granted to prelates for the behoof of the church, or in purum eleemosynam; the only services preferrable by the vassal were prayers, and singing of masses for the souls of the deceased, which approaches nearer to blanch-holding than ward. The purposes of such grants having been, upon the reformation, declared superstitious, the lands mortified were annexed to the Crown: But mortifications to universities, hospitals, &c. were not affected by that annexation; and lands may, at this day, be mortified to any lawful purpose, either by blanch or by feu holding.

Tit. 12. Of the Casualties due to the Superior.

The right of the superior continues unimpaired, notwithstanding the feudal grant, unless in so far as the dominium utile, or property, is conveyed to his vassal. The superiority carries a right to the services and annual duties contained in the reddendo of the vassal's charter. The duty payable by the vassal is a debitiun fundi; i.e., it is recoverable, not only by a personal action against himself, but by a real action against the lands.

2. Besides the constant fixed rights of superiority, there are others, which, because they depend upon uncertain events, are called casualties.

3. The casualties proper to a ward holding, while that tenure subsisted, were ward, recognition, and marriage, which it is now unnecessary to explain, as by the late statutes 20 and 25 Geo. II. for abolishing ward-holdings, the tenure of the lands holden ward of the Crown or Prince is turned into blanch, for payment of one penny Scots yearly, si statutur tantum; and the tenure of those holden of subjects, into seu, for payment of such yearly feu-duty in money, victual, or cattle, in place of all services, as shall be fixed by the court of Session. And accordingly that court, by act of federunt Feb. 8. 1749, laid down rules for ascertaining the extent of these feudalities.

4. The only casualty, or rather forfeiture, proper to feu-holdings, is the losf or tinsel of the feu-right, by the neglect of payment of the feu duty for two full years. Yet where there is no conventional irritancy in the feu-right, the vassal is allowed to purge the legal irritancy at the bar; that is, he may prevent the forfeiture, by making payment before sentence: but where the legal irritancy is fortified by a conventional, he is not allowed to purge, unless where he can give a good reason for the delay of payment.

5. The casualties common to all holdings are, non-entry, relief, liferent-escheat, disclamation, and purpresture. Non-entry is that casualty which arises to the superior out of the rents of the feudal subject, through the heir's neglecting to renew the investiture after his ancestor's death. The superior is intitled to this casualty, not only where the heir has not obtained himself infest, but where his retour is set aside upon nullities. The heir, from the death of the ancestor, till he be cited by the superior in a process of general declarator of non-entry, loses only the retoured duties of his lands, (see next parag.) and he forfeits these, though his delay should not argue any contempt of the superior, because the casualty is considered to fall, as a condition implied in the feudal right, and not as a penalty of transgression: But, where the delay proceeds not from the heir, but from the superior, nothing is forfeited.

6. For understanding the nature of retoured duties, it must be known, that there was anciently a general valuation of all the lands in Scotland, designed both for regulating the proportion of public subsidies, and for ascertaining the quantity of non-entry and relief-duties payable to the superior; which appears, by a contract between K. R. Bruce and his subjects anno 1327, preserved in the library of the faculty of advocates, to have been settled at least as far back as the reign of Alexander III. This valuation became in the course of time, by the improvement of agriculture, and perhaps also by the heightening of the nominal value of our money, from the reign of Robert I. downwards to that of James III. much too low a standard for the superior's casualties: Wherefore, in all services of heirs, the inquest came at last to take proof likewise of the present value of the lands contained in the brief (quantum nunc valent) in order to fix these casualties. The first was called the old, and the other the new extent. Though both extents were ordained to be specified in all retours made to the Chancery upon briefes of inquest; yet by the appellation of retoured duties in a question concerning casualties, the new extent is always understood. The old extent continued the rule for levying public subsidies, till a tax was imposed by new proportions, by several acts made during the usurpation. By two acts of Cromwell's parliament, held at Westminster 1656, imposing taxations on Scotland, the rates laid upon the several counties are precisely fixed. The subsidy granted by the act of convention 1667, was levied on the several counties, nearly in the same proportions that were fixed by the usurper in 1656; and the sums to which each county was subjected were subdivided among the individual land-holders in that county, according to the valuations already settled, or that should be settled by the commission appointed to carry that act into execution. The rent fixed by these valuations is commonly called the valued rent; according to which the land tax, and most of the other public burdens, have been levied since that time.

7. In feu-holdings, the feu-duty is retoured as the rent, because the feu-duty is presumed to be, and truly was at first, the rent. The superior therefore of a feu-holding gets no non-entry, before citation in the general declarator; for he would have been intitled to the yearly feu-duty, though the fee had been full, i.e., though there had been a vassal infest in the lands. The superior of teinds gets the fifth part of the retoured duty as non-entry, because the law considers teinds to be worth a fifth part of the rent. In rights of annualrent which are holden of the granter, the annualrenter becomes his debtor's vassal; and the annualrent contained in the right is retoured to the blanch or other duty contained in the right before declarator.

8. It is because the retoured duty is the presumed rent, that the non-entry is governed by it. If therefore no retour of the lands in non-entry can be produced, nor any evidence brought of the retoured duty, the superior is intitled to the real, or at least to the valued rent, even before citation. In lands formerly holden ward of the King, the heir, in place of the retoured duties, is subjected only to the annual payment of one per cent. of the valued rent.

9. The heir, after he is cited by the superior in the action of general declarator, is subjected to the full rents till his entry, because his neglect is less excusable after citation. The decree of declarator, proceeding on this action, intitles the superior to the possession, and gives him right to the rents, downward from the citation. As this sort of non-entry is properly penal, our law has always restricted it to the retoured duties, if the heir had a probable excuse for not entering.

10. Non-entry does not obtain in burgage-holdings, because the incorporation of inhabitants holds the whole incorporated subjects of the King; and there can be no non-entry due in lands granted to communities, because there the vassal never dies: This covers the right of particulars from non-entry; for if non-entry be excluded with regard to the whole, it cannot obtain with regard to any part. It is also excluded, as to a third of the lands, by the terce, during the widow's life; and as to the whole of them, by the courtesy, during the life of the husband. But it is not excluded by a precept of seisin granted to the heir, till seisin be taken thereon.

11. Relief is that casualty which intitles the superior to an acknowledgement or consideration from the heir, for receiving him as vassal. It is called relief, because, by the entry of the heir, his fee is relieved out of the hands of the superior. It is not due in feu-holdings flowing from subjects, unless where it is expressed in the charter by a special clause for doubling the feu-duty at the entry of an heir; but in feu rights, holden of the crown, it is due, though there should be no such clause in the charter. The superior can recover this casualty, either by a pointing of the ground, as a debitum fundi, or by a personal action against the heir. In blanch and feu-holdings, where this casualty is expressly stipulated, a year's blanch or feu-duty is due in name of relief, beside the current year's duty payable in name of blanch or feu-farm.

12. Escheat (from echeoir, to happen or fall) is that forfeiture which falls through a person's being denounced rebel. It is either single or different. Single escheat, though it does not accrue to the superior, must be explained in this place, because of its coincidence with lifestreet.

13. After a debt is constituted, either by a formal decree, or by registration of the ground of debt, which to the special effect of execution, is in law accounted a decree; the creditor may obtain letters of horning, issuing from the signet, commanding messengers to charge the debtor to pay or perform his obligation, within a day certain. Where horning proceeds on a formal decree of the Session, the time indulged by law to the debtor is fifteen days; if upon a decree of the commission of teinds or admiral, it is ten; and upon the decrees of all inferior judges, fifteen days. Where it proceeds on a registred obligation, which specifies the number of days, that number must be the rule; and, if no precise number be mentioned, the charge must be given on fifteen days, which is the term of law, unless where special statute interposes; as in bills, upon which the debtor may be charged on six days.

14. The messenger must execute these letters (and indeed all summonses) against the debtor, either personally, or at his dwelling house; and, if he get not access to the house, he must strike six knocks at the gate, and thereafter affix to it a copy of his execution. If payment be not made within the days mentioned in the horning, the messenger, after proclaiming three oyez at the market-cross of the head borough, of the debtor's domicile, and reading the letters there, blows three blasts with a horn, by which the debtor is understood to be proclaimed rebel to the King for contempt of his authority; after which, he must affix a copy of the execution to the market-cross: This is called the publication of the diligence, or a denunciation at the horn. Where the debtor is not in Scotland, he must be charged on sixty days, and denounced at the market cross of Edinburgh, and port and shore of Leith.

15. Denunciation, if registered within fifteen days, either in the Sheriff's books, or in the general register, drew after it the rebel's single escheat, i.e. the forfeiture of his moveables to the Crown. Persons denounced rebels have not a persona flandi in judicio; they can neither sue nor defend in any action. But this incapacity, being unfavourable, is personal to the rebel, and cannot be pleaded against his affinee.

16. Persons cited to the court of Justiciary may be also denounced rebels, either for appearing there with too great a number of attendants; or, if they fail to appear, they are declared fugitives from the law. Single escheat falls without denunciation, upon sentence of death pronounced in any criminal trial; and by special statute, upon one's being convicted of certain crimes, though not capital; as perjury, bigamy, deforcement, breach of arrestment, and utury. By the late act abolishing wardholdings, the casualties both of single and different escheat are discharged, when proceeding upon denunciation for civil debts; but they still continue, when they arise from criminal causes. All moveables belonging to the rebel at the time of his rebellion, (whether proceeding upon denunciation, or sentence in a criminal trial), and all that shall be afterwards acquired by him until relaxation, fall under single escheat. Bonds bearing interest, because they continue heritable quad fiticum, fall not under it, nor such fruits of heritable subjects as become due after the term next ensuing the rebellion, these being reserved for the different escheat.

17. The King never retains the right of escheat to himself, but makes it over to a donatory, whose gift is not perfected, till, upon an action of general declarator, it be declared that the rebel's escheat has fallen to the crown by his denunciation, and that the right of it is now transferred to the pursuer by the gift in his favour: Every creditor therefore of the rebel, whose debt was contracted before rebellion, and who has used diligence before declarator, is preferable to the donatory. But the escheat cannot be affected by any debt contracted, nor by any voluntary deed of the rebel after rebellion.

18. The rebel, if he either pays the debt charged for, or suspends the diligence, may procure letters of relaxation from the horn, which, if published in the same place, and registered fifteen days thereafter in the same register with the denunciation, have the effect to restore him to his former state; but they have no retrospect, as to the moveables. moveables already fallen under escheat, without a special clause for that purpose.

19. The rebel, if he continues unreleased for year and day after rebellion, is construed to be civilly dead: And therefore, where he holds any feudal right, his superiors, as being without a vassal, are entitled, each of them, to the rents of such of the lands belonging to the rebel as holds of himself, during all the days of the rebel's natural life, by the casualty of Liferent escheat; except where the denunciation proceeds upon treason or proper rebellion, in which case the liferent falls to the King.

20. It is that estate only, to which the rebel has a proper right of liferent in his own person, that falls under his liferent escheat.

21. Though neither the superior nor his donatory can enter into possession in consequence of this casualty, till decree of declarator; yet that decree, being truly declaratory, has a retrospect, and does not so properly confer a new right, as declare the right formerly constituted to the superior, by the civil death of his vassal. Hence, all charters or heritable bonds, though granted prior to the rebellion, and all adjudications, though led upon debts contracted before that period, are ineffectual against the liferent escheat, unless feisin be taken thereon within year and day after the grantor's rebellion.

22. Here, as in single escheat, no debt contracted after rebellion can hurt the donatory, nor any voluntary right granted after that period, though in security or satisfaction of prior debts.

23. Disclaimation is that casualty whereby a vassal forfeits his whole feu to his superior, if he disowns or disclaims him without ground, as to any part of it. Purpresture draws likewise a forfeiture of the whole feu after it, and is incurred by the vassal's incroaching upon any part of his superior's property, or attempting, by building, inclosing, or otherwise, to make it his own. In both these feudal delinquencies, the least colour of excuse saves the vassal.

24. All grants from the crown, whether charters, gifts of casualties, or others, proceed on signatures which pass the signet. When the King resided in Scotland, all signatures were subscribed by him; but, on the accession of James VI. to the crown of England, a cachet or seal was made, having the King's name engraved on it, in pursuance of an act of the Privy Council, April 4, 1603, with which all signatures were to be afterwards sealed, that the Lords of exchequer were impowered to pass; and these powers are transferred to the court of Exchequer, which was established in Scotland after the union of the two kingdoms in 1707. Grants of higher consequence, as remissions of crimes, gifts proceeding upon forfeiture, and charters of novodamus, must have the King's sign-manual for their warrant.

25. If lands holding of the Crown were to be conveyed, the charter passed, before the union of the kingdoms in 1707, by the great seal of Scotland; and now by a seal substituted in place thereof. Grants of church-dignities, during episcopacy, passed also by the great seal; and the commissions to all the principal officers of the Crown, as Justice Clerk, King's Advocate, Solicitor, &c., do so at this day. All rights which subjects may transmit by simple assignation, the King transmits by the privy seal; as gifts of moveables, or of casualties that require no feisin. The quarter seal, otherwise called the testimonial of the great seal, is appended to gifts of tutory, commissions of briefes issuing from the chancery, and letters of presentation to lands holding of a subject, proceeding upon forfeiture, bastardy, or ultimus heres.

26. Seals are to royal grants, what subscription is to rights derived from subjects, and give them authority; They serve also as a check to gifts procured (fisbreptione vel obreptione) by concealing the truth, or expressing a falsehood; for, where this appears, the gift may be stopped before passing the seals, though the signature should have been signed by the King. All rights passing under the great or privy seal must be registered in the registrars of the great or privy seal respective, before appending the seal.

Tit. 13. Of the Right which the Vassal acquires by getting the Feu.

Under the dominium utile which the vassal acquires by the feudal right, is comprehended the property of whatever is considered as part of the lands, whether of houses, woods, inclosures, &c., above ground; or of coal, limestone, minerals, &c., under ground. Mills have, by the generality of our lawyers, been deemed a separate tenement, and so not carried by a charter or disposition, without either a special clause conveying mills, or the erection of the lands into a barony. Yet it is certain, that, if a proprietor builds a mill on his own lands, it will be carried by his entail, or by a retour, without mentioning it, although the lands are not erected into a barony. If the lands disposed be affracted, or thirled to another mill, the purchaser is not allowed to build a new corn-mill on his property, even though he should offer security that it shall not hurt the thirle; which is introduced for preventing daily temptations to fraud.

2. Proprietors are prohibited to build dove-cotes, unless their yearly rent, lying within two miles thereof, extend to ten chalders of victual. A purchaser of lands, with a dove-cote, is not obliged to pull it down, though he should not be qualified to build one; but, if it becomes ruinous, he cannot rebuild it. The right of brewing, though not expressed in the grant, is implied in the nature of property; as are also the rights of fishing, fowling, and hunting, in so far as they are not restrained by statute.

3. There are certain rights naturally consequent on property, which are deemed to be reserved by the crown as regalia; unless they be specially conveyed. Gold and silver mines are of this sort: The first universally; and the other, where three half-pennies of silver can be extracted from the pound of lead, by act 1424, (three half-pennies at that time was equal to about two shillings five pennies of our present Scots money.) These were by our ancient law annexed to the Crown; but they are now dissolved from it; and every proprietor is intitled to a grant of the mines within his own lands, with the burden of delivering to the crown a tenth of what shall be brought up. 4. Salmon-fishing is likewise a right undefended to be referred by the Crown, if it be not expressly granted; but forty years possession thereof, where the lands are either erected into a barony, or granted with the general clause of fishings, establish as the full right of the salmon fishing in the vassal. A charter of lands, within which any of the king's forests lie, does not carry the property of such forest to the vassal.

5. All the subjects, which were by the Roman law accounted res publicae, as rivers, highways, ports, &c., are, since the introduction of seisin, held to be inter regalia, or in patrimonio principis; and hence incroachment upon a highway is said to infer purpresture. No person has the right of a free port without a special grant, which implies a power in the grantee to levy anchorage and shore dues, and an obligation upon him to uphold the port in good condition. In this class of things, our forefathers reckoned fortalicees, or small places of strength, originally built for the defence of the country, either against foreign invasions, or civil commotions; but these now pass with the lands in every charter.

6. The vassal acquires right by his grant, not only to the lands specially contained in the charter, but to those that have been possessed forty years as pertinent thereof. But, 1. If the lands in the grant are marked out by special limits, the vassal is circumscribed by the tenor of his own right, which excludes every subject without these limits from being pertinent of the lands. 2. A right possessed under an express indenture is preferable, ceteris paribus, to one possessed only as pertinent. 3. Where neither party is infest per expressum, the mutual promissory possession by both, of a subject as pertinent, resolves into a commonalty of the subject possessed: But if one of the parties has exercised all the acts of property of which the subject was capable, while the possession of the other was confined to pasture only, or to casting seed and divot, the first is to be deemed sole proprietor, and the other to have merely a right of servitude.

7. As barony is a nomen universitatis, and unites the several parts contained in it into one individual right, the general conveyance of a barony carries with it all the different tenements of which it consists, though they should not be specially enumerated, (and this holds, even without erection into a barony, in lands that have been united under a special name.) Hence likewise, the possession by the vassal of the smallest part of the barony-lands preserves to him the right of the whole.

8. The vassal is intitled, in consequence of his property, to levy the rents of his own lands, and to recover them from his tenants by an action for rent before his own court; and from all other possessors and introducers, by an action of mails and duties before the Sheriff. He can also remove from his lands, tenants who have no leases, and he can grant tacks or leases to others. A tack is a contract of location, whereby the use of land or any other immovable subject, is set to the lesee or tackman for a certain yearly rent, either in money, the fruits of the ground, or services. It ought to be reduced into writing, as it is a right concerning lands; tacks therefore, that are given verbally, to endure for term of years, are good against neither party, for more than one year. An obligation to grant a tack is as effectual against the granter, as a formal tack. A liferent, having a temporary property in the fruits, may grant tacks to endure for the term of his own liferent.

9. The tackman's right is limited to the fruits which spring up annually from the subject set, either naturally, or by the industry of the tackman; he is not therefore entitled to any of the growing timber above ground, and far less to the minerals, coal, clay, &c. under ground, the use of which consumes the substance. Tacks are, like other contracts, personal rights in their own nature, and consequently ineffectual against singular successors in the lands; but, for the encouragement of agriculture, they were, by act 1449, declared effectual to the tackman for the full time of their endurance, into whose handssoever the lands might come.

10. To give a written tack the benefit of this statute, it must mention the special tack-duty payable to the proprietor, which though small, if it be not elusory, secures the tackman; and it must be followed by possession, which supplies the want of a seisin. If a tack does not express the term of entry, the entry will commence at the next term after its date, agreeable to the rule, Quod puré debetur, praefanti die debetur. If it does not mention the ish, i.e. the term at which it is to determine, it is good for one year only; but, if the intention of parties to continue it for more than one year, should appear from any clause in the tack, it is sustained for two years as the minimum. Tacks granted to perpetuity, or with an indefinite ish, have not the benefit of the statute. Tacks of houses within borough do not fall within this act.

11. Tacks necessarily imply a selectus personae, a choice by the fitter of a proper person for his tenant. Hence the conveyance of a tack, which is not granted to affigees, is ineffectual without the landlord's consent. A right of tack, though it be heritable, falls under the jus mariti, because it cannot be separated from the labouring cattle and implements of tillage, which are moveable subjects. A tack therefore granted to a single woman without the liberty of assigning, falls by her marriage, because the marriage, which is a legal conveyance thereof to the husband, cannot be annulled. This implied exclusion of affigees, is however limited to voluntary, and does not extend to necessary assignments, as an adjudication of a tack by the tackman's creditor; but a tack, expressly excluding affigees, cannot be carried even by adjudication. But tackmen may subset, unless subtenants are expressly excluded; and liferent tacks, because they import a higher degree of right in the tackman, than tacks for a definite term, may be assigned, unless affigees be specially excluded.

12. If neither the fitter nor tackman shall properly discover their intention to have the tack dissolved at the term fixed for its expiration, they are understood, or presumed, to have entered into a new tack upon the same terms with the former, which is called tacit relocation, and continues till the landlord warns the tenant to remove, or the tenant renounces his tack to the landlord: This obtains also in the case of moveable tenants, who possess from year to year without written tacks.

13. In tacks of land, the fitter is commonly bound to put put all the houses and office-houses, necessary for the farm, in good condition at the tenant's entry; and the tenant must keep them and leave them so at his removal. But in tacks of houses, the settler must not only deliver to the tenant the subject set, in tenable repair at his entry, but uphold it in that repair during the whole years of the tack.

14. If the inclemency of the weather, inundation, or calamity of war, should have brought upon the crop an extraordinary damage (plus quam tolerabile), the landlord had, by the Roman law, no claim for any part of the tack-duty: If the damage was more moderate, he might exact the full rent. It is nowhere defined, what degree of sterility or defatuation makes a loss not to be borne; but the general rule of the Roman law seems to be made ours. Tenants are obliged to pay no public burdens, to which they are not expressly bound by their tacks, except mill-services.

15. Tacks may be evacuated during their currency; 1. In the same manner as feu-rights, by the tackman's running in arrear of his tack-duty for two years together. This irritancy may be prevented by the tenant's making payment at the bar before sentence. 2. Where the tenant either runs in arrear of one year's rent, or leaves his farm uncultivated at the usual season; in which case he may be ordained to give security for the arrears, and for the rent of the five following crops, if the tack shall subsist so long; otherwise, to remove, as if the tack were at an end. 3. Tacks may be evacuated at any time, by the mutual consent of parties.

16. The landlord, when he intends to remove a tenant whose tack is expiring, or who possesses without a tack, must, upon a precept signed by himself, warn the tenant forty days preceding the term of Whitsunday, at or immediately preceding the isth, personally, or at his dwelling house, to remove at that term, with his family and effects. This precept must be also executed on the ground of the lands, and thereafter read in the parish-church where the lands lie, after the morning service, and affixed to the most patent door thereof. Whitsunday, though it be a moveable feast, is, in questions of removing, fixed to the 15th of May. In warnings from tenements within borough, it is sufficient that the tenant be warned forty days before the isth of the tack, whether it be Whitsunday or Martinmas; and in these the ceremony of chalking the door is sustained as warning, when proceeding upon a verbal order from the proprietor.

17. This process of warning was precisely necessary for founding an action of removing against tenants, till act of federunt of the court of Session, Dec. 14, 1756, which leaves it in the option of the proprietor, either to use the former methods or to bring his action of removing before the Judge ordinary; which, if it be called forty days before the said term of Whitsunday, shall be held as equal to a warning. Where the tenant is bound, by an express clause of his tack, to remove at the isth without warning, such obligation is, by the said act, declared to be a sufficient warrant for letters of horning, upon which, if the landlord charge his tenant forty days before the said Whitsunday, the judge is authorised to eject him within six days after the term of removing expressed in the tack.

18. Actions of removing might, even before this act of federunt, have been pursued without any previous warning, 1. Against vicious possessors, i.e., persons who had seized the possession by force, or who, without any legal title, had intruded into it, after the last possessor had given it up. 2. Against possessors who had a naked tolerance. 3. Against tenants who had run in arrear of rent, during the currency of their tacks. 4. A man such as had sold their lands, and yet continued to possess after the term of the purchaser's entry. Upon the same ground, warning was not required, in removing against possessors of liberent lands, after the death of the liberent who died in the natural possession: But if he possessed by tenants, these tenants could not be disturbed in their possessions till the next Whitsunday, that they might have time to look out for other farms; but they might be compelled to remove at that term, by an action of removing, without warning.

19. A landlord's title in a removing, let it be ever so lame, cannot be brought under question by a tenant whose tack flows immediately from him; but, if he is to insist against tenants not his own, his right must be perfected by infestment, unless it be such as requires no infestment, as terce, &c.

20. The defender, in a removing, must, before offering any defence which is not instantly verified, give security to pay to the settler the violent profits, if they should be awarded against him. These are so called, because the law considers the tenant's possession after the warning as violent. They are estimated, in tenements within borough, to double the rent; and in lands, to the highest profits the pursuer could have made of them, by possessing them either by a tenant, or by himself.

21. If the action of removing shall be passed from, or if the landlord shall, after using warning, accept of rent from the tenant, for any term subsequent to that of the removal, he is presumed to have changed his mind, and tacit relocation takes place. All actions of removing against the principal or original tackman, and decrees thereupon, if the order be used, which is set forth supra, § 17, are, by the act of federunt 1755, declared to be effectual again the assignees to the tack, or subtenants.

22. The landlord has, in security of his tack-duty, over and above the tenant's personal obligation, a tacit pledge or hypothec, not only in the fruits, but in the cattle pasturing on the ground. The corn, and other fruits, are hypothecated for the rent of that year whereof they are the crop; for which they remain affected, though the landlord should not use his right for years together.

23. The whole cattle on the ground, considered as a quantity, are hypothecated for a year's rent, one after another successively. The landlord may apply this hypothec payment of the past year's rent, at any time within three months from the last conventional term of payment, after which it ceases for that year. As the tenant may increase the subject of this hypothec, by purchasing oxen, sheep, &c. So he can impair it, by selling part of his stock; but if the landlord suspects the tenant's management, he may, by sequestration or poinding, make his right, which was before general upon the whole stock, special upon every individual. A superior has also a hypothec pothec for his feu-duty, of the same kind with that just explained.

24. In tacks of houses, breweries, shops, and other tenements, which have no natural fruits, the furniture and other goods brought into the subject fet are hypothecated to the landlord for one year's rent. But the tenant may by sale impair this hypothec, as he might that of cattle in rural tenements; and indeed, in the particular case of a shop, the tenant rents it for no other purpose, than as a place of sale.

Tit. 14. Of the Transmission of Rights, by Confirmation and Resignation.

A vassal may transmit his feu either to universal successors, as heirs; or to singular successors, i.e., those who acquire by gift, purchase, or other singular title. This last sort of transmission is either voluntary, by disposition; or necessary, by adjudication.

2. By the first feudal rules, no superior could be compelled to receive any vassal in the lands, other than the heir expressed in the investiture; for the superior alone had the power of ascertaining to what order of heirs the fee granted by himself was to descend. But this right of refusal in the superior did not take place, i.e., in the case of creditors apprizers or adjudgers, whom superiors were obliged to receive upon payment of a year's rent. 2. In the case of purchasers of bankrupt estates, who were put on the same footing with adjudgedes. The Crown refuses no voluntary disponee, on his paying a composition to the exchequer of a sixth part of the valued rent. Now superiors are directed to enter all singular successors (except incorporations) who shall have got from the vassal a disposition, containing procuratory of resignation; they always receiving the fees or casualties that law entitles them to on a vassal's entry, i.e., a year's rent.

3. Base rights, i.e., dispositions to be holden of the disponee, are transmissions only of the property, the superiority remaining as formerly. As this kind of right might, before establishing the registers, have been kept quite concealed from all but the grantor and receiver, a public right was preferable to it, unless cloathed with possession: But as this distinction was no longer necessary after the establishment of the records, all infestments are declared preferable, according to the dates of their several registrations; without respect to the former distinction of base and public, or of being cloathed and not cloathed with possession.

4. Public rights, i.e., dispositions to be holden of the grantor's superior, may be perfected either by confirmation or resignation; and therefore, they generally contain both precept of feisin and procuratory of resignation. When the receiver is to complete his right in the first way, he takes feisin upon the precept; but such feisin is ineffectual without the superior's confirmation; for the disponee cannot be deemed a vassal, till the superior receive him as such, or confirm the holding. By the usual style in the transmission of lands, the disposition contains an obligation and precept of infestment, both a me and de me, in the option of the disponee; upon which, if feisin is taken indefinitely, it is construed in favour of the disponee to be a base infestment, because a public right is null without confirmation: But, if the receiver shall afterwards obtain the superior's confirmation, it is considered as if it had been from the beginning a public right.

5. Where two several public rights of the same subject are confirmed by the superior, their preference is governed by the dates of the confirmations, not of the infestments confirmed; because it is the confirmation which compleats a public right.

6. Though a public right becomes, by the superior's confirmation, valid from its date; yet if any mid impediment intervene betwixt that period and the confirmation, to hinder the two from being conjoined, e.g., if the granter of a public right should afterwards grant a base right to another, upon which feisin is taken before the superior's confirmation of the first, the confirmation will have effect only from its own date; and consequently the base right first compleated, will carry the property of the lands preferable to the public one.

7. Resignation is that form of law, by which a vassal surrenders his feu to his superior; and it is either ad perpetuam remanentiam, or in favorem. In resignations ad remanentiam, where the feu is resigned, to the effect that it may remain with the superior, the superior, who before had the superiority, acquires, by the resignation, the property also of the lands resigned: and as his infestment in the lands still subsists, notwithstanding the right by which he had given his vassal the property; therefore, upon the vassals resignation, the superior's right of property revives, and is consolidated with the superiority, without the necessity of a new infestment; but the instrument of resignation must be recorded.

8. Resignations in favorem are made, not with an intention that the property resigned should remain with the superior, but that it should be again given by him, in favour either of the resigner himself, or of a third party; consequently the fee remains in the resigner, till the person in whose favour resignation is made gets his right from the superior perfected by feisin. And because resignations in favorem, are but incomplete personal deeds, our law has made no provision for recording them. Hence, the first feisin on a second resignation is preferable to the last feisin upon the first resignation; but the superior, accepting a second resignation, whereupon a prior feisin may be taken in prejudice of the first resignatory, is liable in damages.

9. By our former decisions, one who was vested with a personal right of lands, i.e., a right not compleated by feisin, effectually divested himself by dispensing it to another; after which, no right remained in the disponee, which could be carried by a second disposition, because a personal right is no more than a jus obligatioinis, which may be transferred by any deed sufficiently expressing the will of the granter. But this doctrine, at the same time that it rendered the security of the records extremely uncertain, was not truly applicable to such rights as required feisin to complete them; and therefore it now obtains, that the granter even of a personal right of lands, is not so divested by conveying the right to one person, but that he may effectually make it over afterwards to another; nother; and the preference between the two does not depend on the dates of the dispositions, but on the priority of the seifins following upon them.

Tit. 15. Of redeemable Rights.

An heritable right is said to be redeemable, when it contains a right of reversion, or return, in favour of the person from whom the right flows. Reversions are either legal, which arise from the law itself, as in adjudications, which law declares to be redeemable within a certain term after their date; or conventional, which are constituted by the agreement of parties, as in wadsets, rights of annual rent, and rights in security. A wadset (from wad or pledge) is a right, by which lands, or other heritable subjects, are impignorated by the proprietor to his creditor, in security of his debt; and, like other heritable rights, is perfected by seifin. The debtor, who grants the wadset, and has the right of reversion, is called the reverfer; and the creditor, receiver of the wadset, is called the wadsetter.

Wadsets, by the present practice, are commonly made out in the form of mutual contracts, in which one party sells the land, and the other grants the right of reversion. When the right of reversion is thus incorporated in the body of the wadset, it is effectual without registration; because the singular successor in the wadset is, in that case, sufficiently certified of the reversion, though it be not registered, by looking into his own right, which bears it in gremio. But where the right of reversion is granted in a separate writing, it is ineffectual against the singular successor of the wadsetter, unless it be registered in the register of seifins within 60 days after the date of the seifin upon the wadset.

3. Rights of reversion are generally esteemed stricti juris; yet they go to heirs, though heirs should not be mentioned, unless there be some clause in the right, discovering the intention of parties, that the reversion should be personal to the reverfer himself. In like manner, though the right should not express a power to redeem from the wadsetter's heir, as well as from himself, redemption will be competent against the heir. All our lawyers have affirmed, that reversions cannot be assigned, unless they are taken to assignees; but from the favour of legal diligence, they may be adjudged.

4. Reversions commonly leave the reverfer at liberty to redeem the lands quondamcange, without restriction in point of time; but a clause is added to some reversions, that if the debt be not paid against a determinate day, the right of reversion shall be irritated, and the lands shall become the irredeemable property of the wadsetter. Nevertheless, the irritancy being penal, as in wadsets, the sum lent falls always short of the value of the lands, and the right of redemption is by indulgence continued to the reverfer, even after the term has expired, while the irritancy is not declared. But the reverfer, if he does not take the benefit of this indulgence, within forty years after the lapse of the term, is cut out of it by prescription.

5. If the reverfer would redeem his lands, he must use an order of redemption against the wadsetter: the first step of which is premonition (or notice given under form of instrument) to the wadsetter, to appear at the time and place appointed by the reverfer, there and there to receive payment of his debt, and thereupon to renounce his right of wadset. In the voluntary redemption of a right of wadset holden base, a renunciation duly registered re-establishes the reverfer in the full right of the lands. Where the wadset was granted to be holden of the grantor's superior, the superior must receive the reverfer, on payment of a year's rent, if he produce a disposition from the wadsetter, containing procuratory of resignation. If, at executing the wadset, the superior has granted letters of regrefs, i.e., an obligation again to enter the reverfer upon redemption of the lands, he will be obliged to receive him, without payment of the year's rent. But letters of regrefs will not have this effect against singular successors in the superiority, if they are not registered in the register of reversions. All wadsets that remain personal rights, are extinguished by simple discharges, though they should not be recorded.

6. If the wadsetter either does not appear at the time and place appointed, or refuses the redemption-money, the reverfer must consign it under form of instrument, in the hands of the person thereto appointed in the right of reversion; or, if no person be named, in the hands of the clerk to the bills, a clerk of seifion, or any responsible person. An instrument of consignment, with the consignatory's receipt of the money consigned, compleats the order of redemption, stops the farther currency of interest against the reverfer, and founds him in an action for declaring the order to be formal, and the lands to be redeemed in consequence of it.

7. After decree of declarator is obtained, by which the lands are declared to return to the debtor, the consigned money, which comes in place of the lands, becomes the wadsetter's, who therefore can charge the consignatory upon letters of horning to deliver it up to him; but, because the reverfer may, at any time before decree, pass from his order, as one may do from any other step of diligence, the consigned sums continue to belong to the reverfer, and the wadsetter's interest in the wadset continues heritable till that period.

8. If the wadsetter chuses to have his money rather than the lands, he must require from the reverfer, under form of instrument, the sums due by the wadset, in terms of the right. The wadset sums continue heritable, notwithstanding requisition, which may be passed from by the wadsetter even after the reverfer has consigned the redemption money in consequence thereof.

9. Wadsets are either proper or improper; A proper wadset is that whereby it is agreed, that the use of the land shall go for the use of the money; so that the wadsetter takes his hazard of the rents, and enjoys them without accounting, in satisfaction, or in solutum of his interest.

10. In an improper wadset, the reverfer, if the rent should fall short of the interest, is taken bound to make up the deficiency; if it amounts to more, the wadsetter is obliged to impute the excrescence towards extinction of the capital: And, as soon as the whole sums, principal and interest, are extinguished by the wadsetter's possession, session, he may be compelled to renounce, or divest himself in favour of the reverser.

11. If the wadsetter be intitled by his right to enjoy the rents without accounting, and if at the same time the reverser be subjected to the hazard of their deficiency, such contract is justly declared unlawful; and also in all proper wadsets wherein any unreasonable advantage has been taken of the debtor, the wadsetter must, during the not requisition of the sum lent, either quit his possession to the debtor, upon his giving security to pay the interest, or subject himself to account for the surplus-rents, as in improper wadsets.

12. Infestments of annualrent, the nature of which has been explained, are also redeemable rights. A right of annualrent does not carry the property of the lands, but it creates a real nexus or burden upon the property, for payment of the interest or annualrent contained in the right; and consequently, the byegone interests due upon it are debita fundi. The annualrenter may therefore either insist in a real action for obtaining letters of poinding the ground, or sue the tenant in a personal action towards the payment of his past interest: And in a competition for those rents, the annualrenter's preference will not depend on his having used a pointing of the ground, for his right was compleated by the feisin; and the power of poinding the ground, arising from that antecedent right, is mere facilitatis, and need not be exercised, if payment can be otherwise got. As it is only the interest of the sum lent which is a burden upon the lands, the annualrenter, if he wants his principal sum, cannot recover it either by poinding or by a personal action against the debtor's tenants, but must demand it from the debtor himself, on his personal obligation in the bond, either by requisition, or by a charge upon letters of horning, according as the right is drawn.

13. Rights of annualrent, being servitudes upon the property, and consequently consistent with the right of property in the debtor, may be extinguished without resignation.

14. Infestments in security are another kind of redeemable rights (now frequently used in place of rights of annualrent), by which the receivers are infest in the lands themselves, and not simply in an annualrent forth of them, for security of the principal sums, interest, and penalty, contained in the rights. If an infestment in security be granted to a creditor, he may thereupon enter into the immediate possession of the lands or annualrent for his payment. They are extinguished as rights of annualrent.

15. All rights of annualrent, rights in security, and generally whatever constitutes a real burden on the fee, may be the ground of an adjudication, which is preferable to all adjudications, or other diligences, intervening between the date of the right and of the adjudication deduced on it; not only for the principal sum contained in the right, but also for the whole past interest contained in the adjudication. This preference arises from the nature of real debts, or debita fundi; but in order to obtain it for the interest of the interest accumulated in the adjudication, such adjudication must proceed on a process of poinding the ground.

Tit. 16. Of Servitudes.

Servitude is a burden affecting lands, or other heritable subjects, whereby the proprietor is either restrained from the full use of what is his own, or is obliged to suffer another to do something upon it. Servitudes are either natural, legal, or conventional. Nature itself may be said to constitute a servitude upon inferior tenements, whereby they must receive the water that falls from those that stand on higher ground. Legal servitudes are established by statute or custom, from considerations of public policy; among which may be numbered the restraints laid upon the proprietors of tenements within the city of Edinburgh. There is as great a variety of conventional servitudes, as there are ways by which the exercise of property may be restrained by pactio in favour of another.

2. Conventional servitudes are constituted, either by grant, where the will of the party burdened is expressed in writing, or by prescription, where his consent is presumed from his acquiescence in the burden for 40 years. A servitude constituted by writing, or grant, is not effectual against the grantor's singular successors, unless the grantee has been in the use or exercise of his right; but they are valid against the grantor and his heirs, even without use. In servitudes that may be acquired by prescription, forty years exercise of the right is sufficient, without any title in writing, other than a charter and feisin of the lands, to which the servitude is claimed to be due.

3. Servitudes constituted by grant are not effectual, in a question with the superior of the tenement burdened with the servitude, unless his consent be exhibited; for a superior cannot be hurt by his vallal's deed: But, where the servitude is acquired by prescription, the consent of the superior, whose right afforded him a good title to interrupt, is implied. A servitude by grant, though followed only by a partial possession, must be governed, as to its extent, by the tenor of the grant; but a servitude by prescription is limited by the measure or degree of the use had by him who prescribes; agreeably to the maxim, tantum praescriptum quantum possessum.

4. Servitudes are either predial or personal. Predial servitudes are burdens imposed upon one tenement, in favour of another tenement. That to which the servitude is due is called the dominant, and that which owes it is called the servient tenement. No person can have right to a predial servitude, if he is not proprietor of some dominant tenement that may have benefit by it; for that right is annexed to a tenement, and so cannot pass from one person to another, unless some tenement goes along with it.

5. Predial servitudes are divided into rural servitudes, or of lands; and urban servitudes, or of houses. The rural servitudes of the Romans were iter, actus, via, aqueductus, aquaeausus, and jus pascenti pecoris. Similar servitudes may be constituted with us, of a foot-road, horse road, cart-road, dams, and aqueducts, watering of cattle, and pastureage. The right of a highway is not a servitude constituted in favour of a particular tenement, but is a right common to all travellers. The care of of highways, bridges, and ferries, is committed to the sheriffs, justices of peace, and commissioners of supply in each shire.

6. Common pasturage, or the right of feeding one's cattle upon the property of another, is sometimes constituted by a general clause of pasturage in a charter or disposition, without mentioning the lands burdened; in which case, the right comprehends whatever had been formerly appropriated to the lands disposed out of the granter's own property, and likewise all pasturage due to them out of other lands. When a right of pasturage is given to several neighbouring proprietors, on a moor or common belonging to the granter, indefinite as to the number of cattle to be pastured, the extent of their several rights is to be proportioned according to the number that each of them can fodder in winter upon his own dominant tenement.

7. The chief servitudes of houses among the Romans were those of support, viz. tigni immittendi, and oneris ferendi. The first was the right of fixing in our neighbour's wall a joist or beam from our house: The second was that of relifting the weight of one's house upon his neighbour's wall.

8. With us, where different floors or stories of the same house belong to different persons, as is frequent in the city of Edinburgh, the property of the house cannot be said to be entirely divided; the roof remains a common roof to the whole, and the area on which the house stands supports the whole; so that there is a communication of property, in consequence of which the proprietor of the ground floor must, without the constitution of any servitude, uphold it for the support of the upper, and the owner of the highest story must uphold that as a cover to the lower. Where the highest floor is divided into garrets among the several proprietors, each proprietor is obliged, according to this rule, to uphold that part of the roof which covers his own garret.

9. No proprietor can build, so as to throw the rainwater falling from his own house, immediately upon his neighbour's ground, without a special servitude, which is called of stillicide; but, if it falls within his own property, though at the smallest distance from the march, the owner of the inferior tegement must receive it.

10. The servitudes altius non tollendi, et non officiendi luminibus vel prospectui, restrain proprietors from raising their houses beyond a certain height, or, from making any building whatsoever that may hurt the light or prospect of the dominant tenement. These servitudes cannot be constituted by prescription alone; for, though a proprietor should have built his house ever so low, or should not have built at all upon his grounds for forty years together, he is presumed to have done so for his own conveniency or profit; and therefore cannot be barred from afterwards building a house on his property, or raising it to what height he pleases, unless he be tied down by his own consent.

11. We have two predial servitudes to which the Romans were strangers; viz. that of fowel or feal and divot, and of thirlage. The first is a right, by which the owner of the dominant tenement may turn up peats, turfs, feals, or divots, from the ground of the servient, and carry them off either for fowel, or thatch, or the other uses of his own tenement.

12. Thirlage is that servitude, by which lands are astricted, or thirled, to a particular mill, and the possessors bound to grind their grain there, for payment of certain multures and sequels, as the agreed price of grinding. In this servitude, the mill is the dominant tenement, and the lands astricted (which are called also the thirle or fukken) the servient. Multure is the quantity of grain or meal payable to the proprietor of the mill, or to the multurer his tacksman. The sequels are the small quantities given to the servants, under the name of knaveship, bannock, and lock or gowpen. The quantities paid to the mill by the lands not astricted, are generally proportioned to the value of the labour, and are called out town or out-fukken multures; but those paid by the thirle are ordinarily higher, and are called in-town or in-fukken multures.

13. Thirlage may be constituted by a land-holder, when, in the disposition of certain lands, he astricts them to his own mill; or when, in the disposition of a mill, he astricts his own lands to the mill disposed, or when, in letting his lands, he makes it a condition in the tacks. The grant of a mill with the general clause of multures, without specifying the lands astricted, conveys the thirlage of all the lands formerly astricted to that mill, whether they were the property of the granter, or of a third party.

14. A less formal constitution serves to astrict barony-lands to the mill of the barony, than is necessary in any other thirlage; which perhaps proceeds from the effects of the union between the two. Hence, if a baron makes over the mill of a barony, cum multuris, or cum astrictis multuris, it infers an astriction of the barony lands to the mill conveyed, even of such as had been before sold to another for a certain duty pro omni alio onere. But if, prior to the baron's conveyance of his mill cum multuris, he had sold any part of the barony-lands to another cum multuris, the first purchaser's lands are not astricted by the posterior grant; for a right of lands with the multures, implies a freedom of these lands from thirlage.

15. Thirlage is either, 1. Of grindable corns; or, 2. Of all growing corns; or, 3. Of the invecta et illata, i.e. of all the grain brought within the thirle, though of another growth. Where the thirlage is of grindable grain, it is in practice restricted to the corns which the tenants have occasion to grind, either for the support of their families, or for other uses; the surplus may be carried out of the thirle unmanufactured, without being liable in multure. Where it is of the grana crecentia, the whole grain growing upon the thirle is astricted, with the exceptions, 1. Of feed and horse-corn, which are destined to uses inconsistent with grinding; and, 2. Of the farm-duties due to the landlord, if they are deliverable in grain not grinded. But, if the rent be payable in meal, flour, or malt, the grain of which these are made must be manufactured in the dominant mill.

16. The thirlage of invecta et illata is seldom constituted but against the inhabitants of a borough or village, that they shall grind all the unmanufactured grain they import thither at the dominant mill. Multure, therefore, cannot be exacted in a thirlage of invecta et illata, for flour flour or oat-meal brought into the servient tenement, unless the importer had brought it in grain, and ground it at another mill. The same grain that owes multure, as *granum crescent*, to the mill in whose thrile it grew, if it shall be afterwards brought within a borough where the *invecta et illata* are thirled, must pay a second multure to the proprietor of that dominant tenement; but, where the right of these two thrilages is in the same proprietor, he cannot exact both. Where lands are thirled of general terms, without expressing the particular nature in the servitude, the lightest thrillage is presumed, from the favour of liberty; but in the affriction of a borough or village, where there is no growing grain which can be the subject of thrillage, the affriction of *invecta et illata* must be necessarily underflood.

17. Thrillage, in the general case, cannot be established by prescription alone, for *iis qua sunt mere facultatis non praescribitur*; but where one has paid for forty years together the heavy infucken multures, the slightest title in writing will subject his lands. Thrillage may be, contrary to the common rule, constituted by prescription alone, 1. Where one pays to a mill a certain sum, or quantity of grain yearly, in name of multure, whether he grinds at it or not (called dry multure.) 2. In mills of the King's property; which is constituted *jure coronae*, without titles in writing; and, where he derives right from another, his titles are more liable to be lost. This is extended in practice to mills belonging to church-lands, where thirty years possession is deemed equivalent to a title in writing, from a presumption that their rights were destroyed at the reformation. Though thrillage itself cannot be constituted by mere possession, the proportion of multure payable to the dominant tenement may be so fixed.

18. The possessors of the lands astricled, are bound to uphold the mill, repair the dam-dykes and aqueducts, and bring home the millstones. These services, though not expressed in the constitution, are implied.

19. Servitudes, being restraints upon property, are *stricti juris*: They are not therefore presumed, if the acts upon which they are claimed can be explained consistently with freedom; and, when servitudes are constituted, they ought to be used in the way least burdensome to the servient tenement. Hence, one who has a servitude of peats upon his neighbour's moat, is not at liberty to extend it for the use of any manufacture which may require an extraordinary expense of fuel; but must confine it to the natural uses of the dominant tenement.

20. Servitudes are extinguished, 1. *Confusione*, when the same person comes to be proprietor of the dominant and servient tenements; for *res sua nemini servit*, and the use the proprietor thereafter makes of the servient tenement is not *jure servitutis*, but is an act of property. 2. By the perishing, either of the dominant or servient tenement. 3. Servitudes are lost *non utendo*, by the dominant tenement neglecting to use the right for forty years; which is considered as a dereliction of it, though he, who has the servient tenement, should have made no interruption, by doing acts contrary to the servitude.

21. Personal servitudes are those by which the propriety of a subject is burdened, in favour, not of a tenement, but of a person. The only personal servitude known in our law, is usufruct or liferent; which is a right to use and enjoy a thing during life, the substance of it being preserved. A liferent cannot therefore be constituted upon things which perish in the use; and though it may upon subjects which gradually wear out by time, as household-furniture, &c., yet, with us, it is generally applied to heritable subjects. He, whose property is burdened, is usually called the liar.

22. Liferents are divided into conventional and legal. Conventional liferents are either simple, or by reservation. A simple liferent, or by a separate constitution, is that which is granted by the proprietor in favour of another: And this sort, contrary to the nature of predial servitudes, requires seisin in order to affect singular successors; for a liferent of lands is, in strict speech, not a servitude, but a right resembling property, which constitutes the life-renter vassal for life; and singular successors have no way of discovering a liferent-right, which perhaps is not yet commenced, but by the records; whereas, in predial servitudes, the constant use of the dominant tenement makes them public. The proper right of liferent is intransmissible, *offibus usufructuarii inheret*: When the profits of the liferented subject are transmitted to another, the right becomes merely personal, for it intitles the assignee to the rent, not during his own life, but his cedent's, and is therefore carried by simple assignation, without seisin.

23. A liferent by reservation, is that which a proprietor reserves to himself in the same writing by which he conveys the fee to another. It requires no seisin; for the grantor's former seisin, which virtually included the liferent, still subsists as to the liferent which is expressly referred. In conjunct insements taken to husband and wife, the wife's right of conjunct fee resolves, in the general case, into a liferent.

24. Liferents by law, are the terce and the courtefy. The terce (*tertia*) is a liferent competent by law to widows, who have not accepted of special provisions, in the third of the heritable subjects, in which their husbands died intestate; and takes place only where the marriage has subsisted for year and day, or where a child has been born alive of it.

25. The terce is not limited to lands, but extends to teinds, and to servitudes and other burdens affecting lands; thus, the widow is intitled, in the right of her terce, to a liferent of the third of the sums secured, either by rights of annalrent, or by rights in security. In improper wadsets, the terce is a third of the sum lent: In those that are proper, it is a third of the wadset-lands; or in case of redemption, a third of the redemption money. Neither rights of reversion, superiority, nor patronage, fall under the terce; for none of these have fixed profits, and fo are not proper subjects for the widow's subsistence; nor tacks, because they are not feudal rights. Burgage-tenements are also excluded from it, the reason of which is not so obvious. Since the husband's seisin is both the measure and security of the terce, such debts or diligences alone, as exclude the husband's seisin, can prevail over it.

26. Where a terce is due out of lands burdened with a prior terce still subsisting, the second terce has only right to a third of the two thirds that remain unaffected by the first terce. But upon the death of the first widow, whereby the lands are burdened of her terce, the lesser terce becomes enlarged, as if the first had never existed. A widow, who has accepted of a special provision from her husband, is thereby excluded from the terce, unless such provision shall contain a clause that she shall have right to both.

27. The widow has no title of possession, and so cannot receive the rents in virtue of her terce, till she be served to it; and in order to this, she must obtain a brief out of the chancery, directed to the Sheriff, who calls an inquest, to take proof that she was wife to the deceased; and that the deceased died intestate in the subjects contained in the brief. The service or sentence of the jury, finding these points proved, does, without the necessity of a retour to the chancery, intitle the wife to enter into the possession; but she can only possess with the heir pro indiviso, and so cannot remove tenants, till the sheriff kens her to her terce, or divides the lands between her and the heir. In this division, after determining by lot or kavil, whether to begin by the sun or the shade, i.e. by the east or the west, the sheriff sets off the two first acres for the heir, and the third for the widow. Sometimes the division is executed, by giving one entire farm to the widow, and two of equal value to the heir. The widow's right is not properly constituted by this service; it was constituted before, by the husband's feifin, and fixed by his death; the service only declares it, and so intitles her to the third part of the rents retro to her husband's death, preferable to any rights that may have affected the lands in the intermediate period between that and her own service. The relict, if she was reputed to be lawful wife to the deceased, must be served, notwithstanding any objections by the heir against the marriage, which may be afterwards tried by the commissary.

28. Courtesy is a liferent given by law, to the surviving husband, of all his wife's heritage in which she died intestate, if there was a child of the marriage born alive. A marriage, though of the longest continuance, gives no right to the courtesy, if there was no issue of it. The child born of the marriage must be the mother's heir: If she had a child of a former marriage, who is to succeed to her estate, the husband has no right to the courtesy while such child is alive; so that the courtesy is due to the husband, rather as father to an heir, than as husband to an heiress. Heritage is here opposed to conquest, and so is to be understood only of the heritable rights to which the wife succeeded as heir to her ancestors, excluding what she herself had acquired by singular titles.

29. Because the husband enjoys the liferent of his wife's whole heritage, on a lucrative title, he is considered as her temporary representative, and so is liable in payment of all the yearly burdens chargeable on the subject, and of the current interest of all her debts, real and personal, to the value of the yearly rent he enjoys by the courtesy. The courtesy needs no solemnity to its constitution: That right, which the husband had to the rents of his wife's estate, during the marriage, jure mariti, is continued with him after her death, under the name of courtefy, by an act of the law itself. As in the terce, the husband's feifin is the ground and measure of the wife's right; so in the courtefy, the wife's feifin is the foundation of the husband's; and the two rights are, in all other respects, of the same nature; if it is not that the courtefy extends to burgage holdings, and to superiorities.

30. All liferenters must use their right salva rei substitutione: Whatever therefore is part of the fee itself, cannot be encroached on by the liferenter, e.g., woods or growing timber, even for the necessary uses of the liferented tenement. But, where a coppice or Silva cadua has been divided into hags, one of which was in use to be cut annually by the proprietor, the liferenter may continue the former yearly cuttings; because these are considered as the annual fruits the subject was intended to yield, and so the proper subject of a liferent.

31. Liferenters are bound to keep the subject liferented in proper repair. They are also burdened with the alimony of the heir, where he has not enough for maintaining himself. The bare right of appurtenance founds the action against the liferenter. It is a burden personal to the liferenter himself, and cannot be thrown upon his adjudging creditors, as coming in his place by their diligences. Lifereenters are also subjected to the payment of the yearly cesses, stipends, &c., falling due during their right, and to all other burdens that attend the subject liferented.

32. Liferent is extinguished by the liferenter's death. That part of the rents which the liferenter had a proper right to, before his death, falls to his executors; the rest, as never having been in bonis of the deceased, goes to the fiar. Martinmas and Whitunday are, by our custom, the legal terms of the payment of rent: Consequently, if a liferenter of lands survives the term of Whitunday, his executors are intitled to the half of that year's rent, because it was due the term before his death; and if he survives the Martinmas, they have right to the whole. If the liferenter, being in the natural possession, and having first fowed the ground, should die, even before the Whitunday, his executors are intitled to the whole crop, in respect that both seed and industry were his. In a liferent of money constituted by a moveable bond, the executors have a right to the interest, down to the very day of the liferenter's death, where no terms are mentioned for the payment thereof; but in the case of an heritable bond, or of a money liferent secured on land, the interests of liferenter and fiar (or of heir and executor, for the same rules serve to fix the interests of both) are both governed by the legal terms of land-rent, without regard to the conventional.

Tit. 17. Of Teinds.

1. Teinds, or tithes, are that liquid proportion of our rents or goods, which is due to churchmen, for performing divine service, or exercising the other spiritual functions proper to their several offices. Most of the canonists affirm, that the precise proportion of a tenth, not only of the fruits of the ground, but of what is acquired by personal industry, is due to the Christian clergy, of divine right, which they therefore call the proper patrimony. trimony of the church; though it is certain that tithes, in their infancy, were given, not to the clergy alone, but to lay-monks who were called pauperes, and to other indigent persons. Charles the Great was the first secular Prince who acknowledged this right in the church. It appears to have been received with us, as far back as David I.

2. The person employed by a cathedral church or monastery to serve the cure in any church annexed, was called a vicar, because he held the church, not in his own right, but in the right or vice of his employers; and so was removeable at pleasure, and had no share of the benefice, other than what they thought fit to allow him. But, in the course of time, the appellation of vicar was limited to those who were made perpetual, and who got a stated share of the benefice for their incumbency; from whence arose the distinction of benefices into parsonages and vicarages.

3. Parsonage-teinds are the teinds of corn; and they are so called because they are due to the parson or other titular of the benefice. Vicarage teinds are the small teinds of calves, lint, hemp, eggs, &c., which were commonly given by the titular to the vicar who served the cure in his place. The first sort was universally due, unless in the case of their infestation to laics, or of a pontifical exemption; but, by the customs of almost all Christendom, the lesser teinds were not demanded where they had not been in use to be paid. By the practice of Scotland, the teinds of animals, or of things produced from animals, as lambs, wool, calves, are due though not accustomed to be paid; but roots, herbs, &c. are not titheable, unless use of payment be proved; neither are personal teinds, i.e. the tenth of what one acquires by his own industry, acknowledged by our law; yet they have been found due, when supported by 40 years possession.

4. The parson who was entitled to the teind of corns, made his right effectual either by accepting of a certain number of teind-bolls yearly from the proprietor, in satisfaction of it; or more frequently, by drawing or separating upon the field his own tenth part of the corns, after they were reaped, from the stock or the remaining nine tenths of the crop, and carrying it off to his own granaries; which is called drawn teind.

5. After the reformation, James VI. considered himself as proprietor of all the church-lands; partly because the purposes for which they had been granted were declared superstitious; and partly, in consequence of the resignations which he, and Q. Mary his mother, had procured from the beneficiaries; and even as to the teinds, tho' our reformed clergy also claimed them as the patrimony of the church, our sovereign did not submit to that doctrine farther than extended to a competent provision for ministers. He therefore erected or secularized several abbeys and priories into temporal lordships; the grantees of which were called sometimes lords of erection, and sometimes titulars, as having by their grants the same title to the erected benefices, that the monasteries had formerly.

6. As the Crown's revenue suffered greatly by these exactions, the temporality of all church-benefices (i.e. church lands) was, by 1587, c. 29, annexed to the crown. That statute excepts from the annexation such benefices as were established before the reformation in laymen, whose rights the legislature had no intention to weaken. Notwithstanding this statute, his Majesty continued to make farther erections, which were declared null by 1592, c. 119, with an exception of such as had been made in favour of lords of parliament, since the general act of annexation in 1587.

7. K. Charles I. soon after his succession, raised a reduction of all these erections, whether granted before or after the act of annexation, upon the grounds mentioned at length by Mr Forbes in his treatise of tithes, p. 159. At last the whole matter was referred to the King himself by four several submissions or compromises, in which the parties on one side were the titulars and their tacksmen, the bishops with the inferior clergy, and the royal boroughs, for the interest they had in the teinds that were gifted for the provision of ministers, schools, or hospitals within their boroughs; and, on the other part, the proprietors who wanted to have the leading of their own teinds. The submission by the titulars contained a surrender into his Majesty's hands of the superiorities of their several erections.

8. Upon each of these submissions his Majesty pronounced separate decrees-arbitral, dated Sept. 2, 1629, which are subjoined to the acts of parliament of his reign. He made it lawful to proprietors to sue the titulars for a valuation, and if they thought fit for a sale also, of their teinds, before the commissioners named or to be named for that purpose. The rate of teind, when it was professed by the proprietor jointly with the stock, for payment of a certain duty to the titular, and so did not admit a separate valuation, was fixed at a fifth part of the constant yearly rent, which was accounted a reasonable surrogatum, in place of a tenth of the increase. Where it was drawn by the titular, and consequently might be valued separately from the stock, it was to be valued as its extent should be ascertained upon a proof before the commissioners; but in this last valuation, the King directed the fifth part to be deducted from the proved teind, in favour of the proprietor, which was therefore called the King's ease. The proprietor suing for a valuation gets the leading of his own teinds as soon as his suit commences; providing he does not allow protestation to be extracted against him for not insisting.

9. Where the proprietor insisted also for a sale of his teinds, the titular was obliged to sell them at nine years purchase of the valued teind-duty. If the pursuer had a tack of his own teinds, not yet expired; or if the defender was only tacksmen of the teinds, and so could not give the pursuer an heritable right; an abatement of the price was to be granted accordingly by the commissioners.

10. There is no provision in the decrees-arbital, for selling the teinds granted for the sustentation of ministers, universities, schools or hospitals; because these were to continue, as a perpetual fund, for the maintenance of the persons or societies to whom they were appropriated; and they are expressly declared not subject to sale, by 1690, c. 30.—1693, c. 23. By the last of these acts, it is also provided vided, that the teinds belonging to bishops, which had then fallen to the crown, upon the abolishing of episcopacy, should not be subject to sale as long as they remained with the Crown not disposed of; nor those which the proprietor, who had right both to stock and teind, reserved to himself, in a sale or feu of the lands.' But, though none of these teinds can be sold, they may be valued.

11. The King, by the decrees arbitral, declared his own right to the superiorities of erection which had been resigned to him by the submission, reserving to the titulars the few duties thereof, until payment by himself to them of one thousand merks Scots for every chalder of ven victual, and for each hundred merks of feu-duty, which right of redeeming the feu-duties was afterwards renounced by the Crown. If the church-vassal should consent to hold his lands of the titular, he cannot thereafter recur to the Crown as his immediate superior.

12. In explaining what the constant rent is, by which the teind must be valued, the following rules are observed. The rent drawn by the proprietor, from the sale of subjects, that are more properly parts of the land than of the fruits, e.g., quarries, minerals, mosses, &c., is to be deducted from the rental of the lands; and also the rent of supernumerary houses, over and above what is necessary for agriculture; and the additional rent that may be paid by the tenant, in consideration of the proprietor's undertaking any burden that law imposes on the tenant, e.g., upholding the tenant's houses, because none of these articles are paid properly on account of the fruits. Orchards must also be deducted, and mill-rent, because the profits of a mill arise from industry; and the corns manufactured therefrom suffer a valuation, as rent payable by the tenant; and therefore ought not to be valued a second time against the titular as mill-rent. The yearly expense of culture ought not to be deducted; for no rent can be produced without it. But, if an improvement of rent is made at an uncommon expense, e.g., by draining a lake, the proprietor is allowed a reasonable abatement on that account.

13. Notwithstanding the several ways of misapplying parochial teinds in the times of popery, some few benefices remained entire in the hands of the parsons. The ministers planted in these, after the reformation, continued to have the full right to them, as proper beneficiaries; but a power was afterwards granted to the patron, to redeem the whole teind from such beneficiaries, upon their getting a competent stipend modified to them; which teind so redeemed, the patron is obliged to sell to the proprietor, at six years purchase.

14. Some teinds are more directly subject to an allocation for the titular's stipend, than others. The teinds, in the hands of the lay titular, fall first to be allocated, who, since he is not capable to serve the cure in his own person, ought to provide one who can; and if the titular, in place of drawing the teind, has set it in tack, the tack-duty is allocated: This sort is called free teind. Where the tack-duty, which is the titular's interest in the teinds, falls short, the tack itself is burdened, or, in other words, the surplus teind over and above the tack-duty: But, in this case, the commissioners are empowered to recompense the tackman, by prorogating his tack for such a number of years as they shall judge equitable. Where this likewise proves deficient, the allocation falls on the teinds, heritably conveyed by the titular, unless he has warranted his grant against future augmentations; in which case, the teinds of the lands belonging in property to the titular himself must be allocated in the first place.

15. Where there is sufficiency of free teinds in a parish, the titular may allocate any of them he shall think fit for the minister's stipend, since they are all his own; unless there has been a previous decree of locality: And this holds, though the stipend should have been paid immemorially out of the teinds of certain particular lands. This right was frequently abused by titulars, who, as soon as a proprietor had brought an action of sale of his teinds, allocated the pursuer's full teind for the stipend, whereby such action became ineffectual: It was therefore provided, that after citation in a sale of teinds it shall not be in the titular's power to allocate the pursuer's teinds solely, but only in proportion with the other teinds in the parish.

16. Ministers glebes are declared free from the payment of teind. Lands cum decimis inclusis are also exempted from teind. But, in order to exempt lands from payment of teind, it is necessary that the proprietor prove his right thereto, cum decimis inclusis, as far back as the above act of annexation 1587.

17. Teinds are debita fructuum, not fundi. The action therefore for bygone teinds is only personal, against those who have intermeddled, unless where the titular is in seft in the lands, in security of the valued teind-duty. Where a tenant is, by his tack, bound to pay a joint duty to his landlord for stock and teind, without distinguishing the rent of each, his defence of a bona fide payment of the whole to the landlord has been sustained in a suit at the instance of a laic titular, but repelled where a churchman was pursuer. In both cases the proprietor who receives such rent is liable as intermeddler.

18. In tacks of teinds, as of lands, there is place for tacit relocation; to stop the effect of which, the titular must obtain and execute an inhibition of teinds against the tackman, which differs much from inhibition of lands (explained under the next title), and is intended merely to interpell or inhibit the tackman from farther intermeddling. This diligence of inhibition may also be used at the suit of the titular, against any other possessor of the teinds; and if the tackman or possessor shall intermeddle after the inhibition is executed, he is liable in a spuizlie.

19. Lands and teinds pass by different titles: A disposition of lands therefore, though granted by one who has also right to the teind, will not carry the teind, unless it shall appear from special circumstances that a sale of both was designed by the parties. In lands cum decimis inclusis, where the teinds are consolidated with the stock, the right of both must necessarily go together in all cases.

Tit. 18. Of Inhibitions.

The constitution and transmission of feudal rights being explained, explained, and the burdens with which they are chargeable, it remains to be considered, how these rights may be affected at the suit of creditors, by legal diligence. Diligences are certain forms of law, whereby a creditor endeavours to make good his payment, either by afflicting the person of his debtor, or by securing the subjects belonging to him from alienation, or by carrying the property of these subjects to himself. They are either real or personal. Real diligence is that which is proper to heritable or real rights; personal, is that by which the person of the debtor may be secured, or his personal estate affected. Of the first sort we have two, viz. Inhibition and Adjudication.

2. Inhibition is a personal prohibition, which passes by letters under the signet, prohibiting the party inhibited to contract any debt, or do any deed, by which any part of his lands may be aliened or carried off, in prejudice of the creditor inhibiting. It must be executed against the debtor, personally, or at his dwelling house, as summonses, and thereafter published and registered in the same manner with interdictions, (see Tit. vii. 30.)

3. Inhibition may proceed, either upon a liquid obligation, or even on an action commenced by a creditor for making good a claim not yet sustained by the judge; which last is called inhibition upon a depending action. The summons, which constitutes the dependence, must be executed against the debtor before the letters of inhibition pass the signet; for no suit can be said to depend against one, till he be cited in it as a defender: But the effect of such inhibition is suspended, till decree be obtained in the action against the debtor; and in the same manner, inhibitions on conditional debts have no effect, till the condition be purified. Inhibitions are not granted, without a trial of the cause, when they proceed on conditional debts. And though, in other cases, inhibitions now pass of course, the Lords are in use to stay, or recall them, either on the debtor's shewing cause why the diligence should not proceed, or even ex officio where the ground of the diligence is doubtful.

4. Though inhibitions, by their uniform style, disable the debtor from selling his moveable as well as his heritable estate, their effect has been long limited to heritage, from the interruption that such an embargo upon moveables must have given to commerce; so that debts contracted after inhibition may be the foundation of diligence, against the debtor's person and moveable estate. An inhibition secures the inhibitor against the alienation, not only of the lands that belonged to his debtor when he was inhibited, but of those that he shall afterwards acquire; but no inhibition can extend to such after-purchases as lie in a jurisdiction where the inhibition was not registred; for it could not have extended to these, tho' they had been made prior to the inhibition.

5. This diligence only strikes against the voluntary debts or deeds of the inhibited person: It does not restrain him from granting necessary deeds, i.e., such as he was obliged to grant anterior to the inhibition, since he might have been compelled to grant these before the inhibitor had acquired any right by his diligence. By this rule, a wadsetter or annualrenter might, after being inhibited, have effectually renounced his right to the reverser on payment, because law could have compelled him to it; but to secure inhibitors against the effect of such alienations, it is declared by act of federunt of the court of Session, Feb. 19, 1680, that, after intimation of the inhibition to the reverser, no renunciation or grant of redemption shall be sustained, except upon declarator of redemption brought by him, to which the inhibitor must be made a party.

6. An inhibition is a diligence simply prohibitory, so that the debt, on which it proceeds, continues personal after the diligence; and consequently, the inhibitor, in a question with anterior creditors whose debts are not struck at by the inhibition, is only preferable from the period at which his debt is made real by adjudication: And where debts are contracted on heritable security, though posterior to the inhibition, the inhibitor's debt, being personal, cannot be ranked with them; he only draws back from the creditors ranked the sums contained in his diligence. The heir of the person inhibited is not refrained from alienation, by the diligence used against his ancestor; for the prohibition is personal, affecting only the debtor, against whom the diligence is used.

7. Inhibitions do not, of themselves, make void the posterior debts or deeds of the person inhibited; they only afford a title to the user of the diligence to set them aside, if he finds them hurtful to him: And even where a debt is actually reduced ex capitie inhibitionis, such reduction, being founded solely in the inhibitor's interest, is profitable to him alone, and cannot alter the natural preference of the other creditors.

8. Inhibitions may be reduced, upon legal nullities, arising either from the ground of debt, or the form of diligence. When payment is made by the debtor to the inhibitor, the inhibition is said to be purged. Any creditor, whose debt is struck at by the inhibition, may, upon making payment to the inhibitor, compel him to assign the debt and diligence in his favour, that he may make good his payment the more effectually against the common debtor.

Tit. 19. Of Comprisings, Adjudications, and Judicial Sales.

Heritable rights may be carried from the debtor to the creditor, either by the diligence of apprising (now adjudication), or by a judicial sale carried on before the court of Session. Apprising, or comprising, was the sentence of a sheriff, or of a messenger who was specially constituted sheriff for that purpose, by which the heritable rights belonging to the debtor were sold for payment of the debt due to the apprizer; so that apprisings were, by their original constitution, proper sales of the debtor's lands, to any purchaser who offered. If no purchaser could be found, the sheriff was to apprise or tax the value of the lands by an inquest, (whence came the name of apprising), and to make over to the creditor lands to the value of the debt.

2. That creditors may have access to affect the estate of their deceased debtor, though the heir should stand off from entering, it is made lawful (by 1540, c. 106.) for any creditor to charge the heir of his debtor to enter to his ancestor, year and day being past after the ancestor's death; within forty days after the charge; and, if the heir fails, the creditor may proceed to apprise his debtor's lands, as if the heir had been entered. Custom has so explained this statute, that the creditor may charge the heir, immediately after the death of his ancestor, provided letters of apprising be not raised till after the expiry both of the year and of the forty days next ensuing the year, within which the heir is charged to enter. But this statute relates only to such charges on which apprising is to be led against the ancestor's lands; for, in those which are to be barely the foundation of a common summons or process against the heir, action will be sustained if the year be elapsed from the ancestor's death before the execution of the summons, though the forty days should not be also expired. Though the statute authorizes such charges against majors only, practice has also extended it against minors, and the rule is extended to the case where the heir is the debtor. One must, in this matter, distinguish between a general and a special charge. A general charge serves only to fix the representation of the heir who is charged, so as to make the debt his, which was formerly his ancestor's: But a special charge makes up for the want of a service, explained Tit. xxvii. 25, and places the heir, fictione juris, in the right of the subjects to which he is charged to enter. Where therefore the heir is the debtor, a general charge for fixing the representation against him is unnecessary, since the only concern of the creditor is, that his debtor make up titles to the ancestor's estate, which is done by a special charge. But where the deceased was the debtor, the creditor must first charge his heir to enter in general, that it may be known whether he is to represent the debtor; if he does not enter within forty days, the debt may be fixed against him by a decree of constitution, on which he must be charged to enter heir in special, upon forty days more; and these must be elapsed before the creditor can proceed to apprise.

3. Apprisings in course of time underwent several changes in their form and effect, till at length, by act 1672, c. 19, adjudications were substituted in their place, which directed to proceed against debtors by way of action before the court of Session. By that statute, such part of the debtor's lands is to be adjudged as is equivalent to the principal sum and interest of the debt, with the composition due to the superior and expenses of seisinment, and a fifth part more in respect the creditor is obliged to take land for his money. The debtor must deliver to the creditor a valid right of the lands to be adjudged, or transmits thereof, renounce the possession in his favour, and ratify the decree of adjudication: And law considers the rent of the lands as precisely commended to the interest of the debt; so that the adjudger lies under no obligation to account for the surplus rents. In this, which is called a special adjudication, the legal or time within which the debtor may redeem, is declared to be five years; and the creditor attaining possession upon it can use no farther execution against the debtor, unless the lands be evicted from him.

4. Where the debtor does not produce a sufficient right to the lands, or is not willing to renounce the possession, and ratify the decree, (which is the case that has most frequently happened), the statute makes it lawful for the creditor to adjudge all right belonging to the debtor in the same manner, and under the same reversion of ten years, as he could, by the former laws, have apprised it. In this last kind, which is called a general adjudication, the creditor must limit his claim to the principal sum, interest, and penalty, without demanding a fifth part more. But no general adjudication can be insisted on, without libelling in the summons the other alternative of a special adjudication; for special adjudications are introduced by the statute in the place of apprisings; and it is only where the debtor refuses to comply with the terms thereof that the creditor can lead a general adjudication.

5. Abbreviates are ordained to be made of all adjudications, which must be recorded within sixty days after the date of the decree. In every other respect, general adjudications have the same effects that apprisings had; adjudgers in possession are accountable for the surplus rents; a citation in adjudications renders the subject litigious; superiors are obliged to enter adjudgers; the legal of adjudications does not expire during the debtor's minority, &c. Only it may be observed, that though apprisings could not proceed before the term of payment, yet where the debtor is vergens ad inopiam, the court ex nobili officio admits adjudication for the debt before it be payable. But this sort being founded solely in equity, subsists merely as a security, and cannot carry the property to the creditor by any length of time.

6. There are two kinds of adjudication, which took place at the same time with apprisings, and still obtain; viz., adjudications on a decree cognitionis causa, otherwise called contra hereditatem jacentem, and adjudications in implement. Where the debtor's apparent heir, who is charged to enter, formally renounces the succession, the creditor may obtain a decree cognitionis causa; in which, though the heir renouncing is cited for the sake of form, no sentence condemnatory can be pronounced against him, in respect of his renunciation; the only effect of it is to subject the hereditas jacens to the creditor's diligence.

7. Adjudications contra hereditatem jacentem, carry not only the lands themselves that belonged to the deceased, but the rents thereof fallen due since his death; for these, as an accessory to the estate belonging to the deceased, would have descended to the heir if he had entered, which rule is applied to all adjudications led on a special charge. This sort of adjudication is declared redeemable within seven years, by any co-adjudging creditor, either of the deceased debtor, or of the heir renouncing. The heir himself, who renounces, cannot be restored against his renunciation, nor consequently redeem, if he be not a minor. But even a major may redeem indirectly, by granting a simulate bond to a confident person; the adjudication, upon which, when conveyed to himself, is a good title to redeem all other adjudications against the lands belonging to his ancestor.

8. Adjudications in implement are deduced against those who have granted deeds without procuratory of resignation or precept of seisin, and refuse to divest themselves; to the end that the subject conveyed may be effectually vested in the grantee. These adjudications may be also directed against the heir of the grantor, upon a charge to enter. Here there is no place for a legal reversion; for, as the adjudication is led for completing the right of a special subject, it must carry that subject as irredeemably as if the right had been voluntarily completed.

9. All adjudications led within year and day of that one which has been made first effectual by seisin (where seisin is necessary) or exact diligence for obtaining seisin, are preferable pari passu. The year and day runs from the date of the adjudication, and not of the seisin or diligence for obtaining it. After the days of that period, they are preferable according their dates. All the co-adjudicators within the year are preferable pari passu as if one adjudication had been led for all their debts. This makes the seisin or diligence on the first adjudication a common right to the rent, who must therefore be refund to the owner of that diligence his whole expense laid out in carrying on and completing it. And though that first adjudication should be redeemed, the diligence upon it still subsists as to the rest. This pari passu preference, however, does not destroy the legal preference of adjudications led on debita fundi. See Tit. xv. 15. Nor does it take place in adjudications in implement.

10. Before treating of judicial sales of bankrupts estates, the nature of sequestration may be shortly explained, which is a diligence that generally enters in actions of sale. Sequestration of lands is a judicial act of the court of Session, whereby the management of an estate is put into the hands of a factor or steward named by the court, who gives security, and is to be accountable for the rents to all having interest. This diligence is competent, either where the right of the lands is doubtful, if it be applied for before either of the competitors has attained possession; or where the estate is heavily charged with the debts: But, as it is an unfavourable diligence, it is not admitted, unless that measure shall appear necessary for the security of creditors. Subjects, not brought before the court by the diligence of creditors, cannot fall under sequestration; for it is the competition of creditors which alone founds the jurisdiction of the court to take the disputed subject into their possession.

11. The court of Session who decrees the sequestration has the nomination of the factor, in which they are directed by the recommendation of the creditors. A factor appointed by the Session, though the proprietor had not been seised in the lands, has a power to remove tenants. Judicial factors must, within six months after extracting their factory, make up a rental of the estate, and a list of the arrears due by tenants, to be put into the hands of the clerk of the proceeds, as a charge against themselves, and a note of such alterations in the rental as may afterwards happen; and must also deliver to the clerk annually a scheme of their accounts, charge and discharge, under heavy penalties. They are, by the nature of their office, bound to the same degree of diligence that a prudent man adhibits in his own affairs; they are accountable for the interest of the rents, which they either have, or by diligence might have recovered, from a year after their falling due. As it is much in the power of those factors to take advantage of the necessities of creditors, by purchasing their debts at an undervalue, all such purchases made either by the factor himself, or to his behalf, are declared equivalent to an acquittance or extinction of the debt. No factor can warrantably pay to any creditor, without an order of the court of Session; for he is, by the tenor of his commission, directed to pay the rents to those who shall be found to have best right to them. Judicial factors are entitled to a salary, which is generally stated at five per cent. of their introductions; but it is seldom ascertained till their office expires, or till their accounting; that the court may modify a greater or smaller salary, or none, in proportion to the factor's integrity and diligence. Many cases occur, where the court of Session, without sequestration, name a factor to preserve the rents from perishing; e.g., where an heir is deliberating whether to enter, where a minor is without tutors, where a succession opens to a person residing abroad; in all which cases, the factor is subjected to the rules laid down in act of sequestration, Feb. 13. 1730.

12. The word bankrupt is sometimes applied to persons whose funds are not sufficient for their debts; and sometimes, not to the debtor, but to his estate. The court of Session are empowered, at the suit of any real creditor, to try the value of a bankrupt's estate, and sell it for the payment of his debts.

13. No proceeds of sale, at the suit of a creditor, can proceed without a proof of the debtor's bankruptcy, or at least that his lands are so charged with debts, that no prudent persons will buy from him; and therefore the summons of sale must comprehend the debtor's whole estate. The debtor, or his apparent heir, and all the real creditors in possession, must be made parties to the suit; but it is sufficient if the other creditors be called by an edictal citation. The summons of sale contains a conclusion of ranking or preference of the bankrupt's creditors. In this ranking, first and second terms are assigned to the whole creditors for exhibiting in court (or producing) their rights and diligences; and the decree of certification proceeding thereupon, against the writings not produced, has the same effect in favour of the creditors who have produced their rights, as if that decree had proceeded upon an action of reduction-improbation. See Tit. xxx. 5. The ranking of these creditors must be concluded by an extracted decree, before the actual sale. The irredeemable property of the lands is adjudged by the court to the highest offerer at the sale. The creditors receiving payment must grant to the purchaser absolute warrantice, to the extent of the sum received by them; and the lands purchased are declared disburdened of all debts or deeds of the bankrupt, or his ancestors, either on payment of the price by the purchaser to the creditors according to their preference, or on configuration of it, in case of their refusal, in the hands of the magistrates of Edinburgh: The only remedy provided to such creditors as judge themselves hurt by the sale of division of the price, even though they should be minors, is an action for recovering their share of the price against the creditors who have received it.

14. The expense of these processes is disbursed by the factor out of the rents in his hands; by which the whole whole burden of such expense falls upon the posterior creditors.

15. Apparent heirs are intitled to bring actions of sale of the estates belonging to their ancestors, whether bankrupt or not; the expense of which ought to fall upon the pursuer, if there is any excessiveness of the price, after payment of the creditors.

16. As processes of ranking and sale are designed for the common interest of all, the creditors, no diligence carried on or completed during their pendency ought to give any preference in the competition; pendente lite, nihil innovandum.

17. It is a rule in all real diligences, that where a creditor is preferable on several different subjects, he cannot use his preference arbitrarily, by favouring one creditor more than another; but must allocate his universal or catholic debt proportionally against all the subjects or parties whom it affects. If it is material to such creditor to draw his whole payment out of any one fund, he may apply his debt so as may best secure himself; but that inequality will be rectified, as to the posterior creditors, who had likewise, by their rights and diligences, affected the subjects out of which he drew his payment, by obliging him to assign in their favour his right upon the separate subjects which he did not use in the ranking; by which they may recur against these separate subjects for the shares which the debt preferred might have drawn out of them. As the obligation to assign is founded merely in equity, the catholic creditor cannot be compelled to it, if his assigning shall weaken the preference of any separate debt vested in himself, affecting the special subject sought to be assigned. But if a creditor upon a special subject shall acquire from another a catholic right, or a catholic creditor shall purchase a debt affecting a special subject, with a view of creating to the special debt a higher degree of preference than was naturally due to it, by an arbitrary application of the catholic debt, equity cannot protect him from assigning in favour of the creditor excluded by such application, especially if, prior to the purchase, the subject had become litigious by the process of ranking; for transmissions ought not to hurt creditors who are no parties to them, nor to give the purchaser any new right, which was not formerly in himself or his cedent.

Tit. 20. Of Obligations and Contracts in general.

The law of heritable rights being explained, moveable rights fall next to be considered, the doctrine of which depends chiefly on the nature of Obligations. An obligation is a legal tie, by which one is bound to pay or perform something to another. Every obligation on the person obliged, implies an opposite right in the creditor, so that what is a burden in regard to the one is right with respect to the other; and all rights founded on obligation are called personal. There is this essential difference between a real and a personal right, that a jus in re, whether of property, or of an inferior kind as servitude, entitles the person vested with it to possess the subject as his own; or if he is not in possession, to demand it from the possessors; whereas the creditor in a personal right has only jus ad rem, or a right to compel the debtor to fulfil his obligation; without any right in the subject itself, which the debtor is bound to transfer to him. One cannot oblige himself, but by a present act of the will. A bare resolution therefore, or purpose to be obliged, is alterable at pleasure.

2. Obligations are either, first, merely natural, where one person is bound to another by the law of nature, but cannot be compelled by any civil action to the performance. Thus, though deeds granted by a minor having curators, without their consent, are null, yet the minor is naturally obliged to perform such deeds; and parents are naturally obliged to provide their children in reasonable patrimonies. Natural obligations intitle the creditor to retain what he has got in virtue thereof, without being subjected to restore it. 2. Obligations are merely civil, which may be sued upon by an action, but are elided by an exception in equity; this is the case of obligations granted through force or fear, &c. 3. Proper or full obligations, are those which are supported both by equity and the civil sanction.

3. Obligations may be also divided into, 1. Pure, to which neither day nor condition is adjected. These may be exacted immediately. 2. Obligations (ex die), which have a day adjected to their performance. In these, dies statem cedit, sed non venit; a proper debt arises from the date of the obligation, because it is certain that the day will exist; but the execution is suspended, till the lapse of that day. 3. Conditional obligations; in which there is no proper debt (dies non cedit) till the condition be purified, because it is possible the condition may exist; and which therefore are said to create only the hope of a debt; but the granter, even of these, has no right to refuse. An obligation, to which a day is adjected that possibly may never exist, implies a condition; dies incertus pro conditione habetur. Thus, in the case of a provision to a child, payable when he attains to the age of fourteen, if the child dies before that age, the provision falls.

4. Obligations, when considered with regard to their cause, were divided by the Romans, into those arising from contract, quasi contract, delict, and quasi-delict: But there are certain obligations, even full and proper ones, which cannot be derived from any of these sources, and to which Lord Stair gives the name of obediential. Such as the obligation on parents to aliment or maintain their children; which arises singly from the relation of parent and child, and may be enforced by the civil magistrate. Under parents are comprehended the mother, grandfather, and grandmother, in their proper order. This obligation on parents extends to the providing of their issue in all the necessaries of life, and giving them suitable education. It ceases, when the children can earn a livelihood by their own industry; but the obligation on parents to maintain their indigent children, and reciprocally on children to maintain their indigent parents, is perpetual. This obligation is, on the father's death, transferred to the eldest son, the heir of the family; who, as representing the father, must aliment his younger brothers and sisters: The brothers are only intitled to alimony, till their age of twenty-one, after which they are presumed able to do for themselves; but the obligation to maintain the sisters continues till their marriage. In persons of lower rank, the obligation to aliment the sisters ceases after they are capable of subsisting by any service or employment.

5. All obligations, arising from the natural duty of restitution, fall under this class: Thus, things given upon the view of a certain event, must be restored, if that event does not afterwards exist: Thus also, things given ob turpem causam, where the turpitude is in the receiver and not in the giver, must be restored. And on the same principle, one upon whose ground a house is built or repaired by another, is obliged, without any covenant, to restore the expense laid out upon it, in so far as it has been profitable to him.

6. A contract is the voluntary agreement of two or more persons, whereby something is to be given or performed upon one part, for a valuable consideration, either present or future, on the other part. Consent, which is implied in agreement, is excluded, i.e., by error in the essentials of the contract, for in such case, the party does not properly contract, but errs or is deceived; And this may be also applied to contracts which take their rise from fraud or imposition. 2. Consent is excluded by such a degree of restraint upon any of the contracting parties, as extorts the agreement; for where violence or threatening are used against a person, his will has really no part in the contract.

7. Loan or mutuum is that contract which obliges a person, who has borrowed any fungible subject from another, to restore to him as much of the same kind, and of equal goodness. Whatever receives its estimation in number, weight, or measure, is a fungible, as corn, wine, current coin, &c. The only proper subjects of this contract are things which cannot be used, without either their extinction or alienation; hence, the property of the thing lent is necessarily transferred by delivery to the borrower, who consequently must run all the hazards, either of its deterioration or its perishing, according to the rule, res perit suo domino. Where the borrower neglects to restore, at the time and place agreed on, the estimation of the thing lent must be made according to its price at that time and in that place; because it would have been worth so much to the lender, if the obligation had been duly performed. If there is no place nor time stipulated for, the value is to be stated according to the price that the commodity gave when and where it was demanded. In the loan of money, the value put on it by public authority, and not its intrinsic worth, is to be considered. This contract is obligatory only on one part; for the lender is subjected to no obligation: The only action therefore that it produces, is pointed against the borrower, that he may restore as much in quantity and quality as he borrowed, together with the damage the lender may have suffered through default of due performance.

8. Commodate is a species of loan, gratuitous on the part of the lender, where the thing lent may be used, without either its perishing or its alienation. Hence, in this sort of loan, the property continues with the lender: the only right the borrower acquires in the subject is its use, after which he must restore the individual thing that he borrowed: Consequently, if the subject perishes, it perishes to the lender, unless it has perished by the borrower’s fault. What degree of fault or negligence makes either of the contracting parties liable to the other in damages, is comprehended under the following rules. Where the contract gives a mutual benefit to both parties, each contractor is bound to exhibit a middle sort of diligence, such as a man of ordinary prudence uses in his affairs. Where only one of the parties has benefit by the contract, that party must use exact diligence; and the other who has no advantage by it is accountable only for dole, or for gross omissions which the law construes to be dole. Where one employs less care on the subject of any contract which implies an exuberant trust, than he is known to employ in his own affairs, it is considered as dole.

9. By these rules, the borrower in the contract of commodate must be exactly careful of the thing lent, and restore it at the time fixed by the contract, or after that use is made of it for which it was lent: If he puts it to any other use, or neglects to restore it at the time covenanted, and if the thing perishes thereafter, even by mere accident, he is bound to pay the value. On the other part, the lender is obliged to restore to the borrower such of the expenses disbursed by him on that subject, as arose from any uncommon accident, but not those that naturally attend the use of it. Where a thing is lent gratuitously, without specifying any time of redelivery, it constitutes the contract of precarium, which is revocable at the lender’s pleasure, and, being entered into from a personal regard to the borrower, ceases by his death.

10. Depositum is a contract, by which one who has the custody of a thing committed to him (the depositary), is obliged to restore it to the depositor. If a reward is bargained for by the depositary for his care, it resolves into the contract of location. As this contract is gratuitous, the depositary is only answerable for the consequences of gross neglect; but after the deposit is demanded, he is accountable even for casual misfortunes. He is entitled to a full indemnification for the losses he has sustained by the contract, and to the recovery of all sums expended by him on the subject.

11. An obligation arises without formal pactum, barely by a traveller’s entering into an inn, ship, or stable, and there depositing his goods, or putting up his horses; whereby the innkeeper, shipmaster, or stabler, is accountable, not only for his own acts and those of his servants, (which is an obligation implied in the very exercise of these employments), but of the other guests or passengers; and, indeed, in every case, unless where the goods have been lost damno fatale, or carried off by pirates or house-breakers. Not only the masters of ships but their employers, are liable each of them for the share that he has in the ship; but by the present custom of trading nations, the goods brought into a ship must have been delivered to the master or mate, or entered into the ship-books. Carriers fall within the intendment of this law; and practice has extended it to vintners within borough. The extent of the damage sustained by the party may be proved by his own oath in lietum.

12. Sequestration, whether voluntarily consented to by the parties, or authorised by the judge, is a kind of deposit; deposit; but as the office of sequestrer, to whose care the subject in dispute is committed, is not considered as gratuitous, he cannot throw it up at pleasure, as a common depositary may do; and he is liable in the middle degree of diligence. Confinement of money is also a deposit. It may be made, either where the debt is called in question by the debtor, as in suspensions; or where the creditor refuses to receive his money, as in wadsets, &c. The risk of the confined money lies on the configner, where he ought to have made payment, and not confinement, or has confined only a part; or has chosen for confignatory, a person neither named by the parties nor of good credit. The charger, or other creditor, runs the risk, if he has charged for sums not due, or has without good reason refused payment, by which refusal the confinement became necessary. It is the office of a confignatory, to keep the money in safe custody, till it be called for: If therefore he puts it out at interest, he must run the hazard of the debtor's insolvency; but, for the same reason, though he should draw interest for it, he is liable in none to the configner.

13. Pledge, when opposed to wadset, is a contract, by which a debtor puts into the hands of his creditor a special moveable subject in security of the debt, to be delivered on payment. Where a security is established by law to the creditor, upon a subject which continues in the debtor's possession, it has the special name of an hypothec. Tradesmen and ship-carpenters have an hypothec on the house or ship repaired, for the materials and other charges of reparation; but not for the expense of building a new ship. Owners of ships have an hypothec on the cargo for the freight, heritors on the fruits of the ground, and landlords on the invecta et illuta, for their rents. Writers also, and agents, have a right of hypothec, or more properly of retention, in their constituent's writings, for their claim of pains and disbursements. A creditor cannot, for his own payment, sell the subject impugnated, without applying to the judge-ordinary for a warrant to put it up to public sale or roup; and to this application the debtor ought to be made a party.

Tit. 21. Of Obligations by Word or Writ.

The appellation of verbal may be applied to all obligations to the constitution of which writing is not essential, which includes both real and consensual contracts; but as these are explained under separate titles, obligations by word, in the sense of this rubric, must be restricted, either to promises, or to such verbal agreements as have no special name to distinguish them. Agreement implies the intervention of two different parties, who come under mutual obligations to one another. Where nothing is to be given or performed but on one part, it is properly called a promise, which, as it is gratuitous, does not require the acceptance of him to whom the promise is made. An offer, which must be distinguished from a promise, implies something to be done by the other party; and consequently is not binding on the offerer, till it be accepted, with its limitations or conditions, by him to whom the offer is made; after which, it becomes a proper agreement.

2. Writing must necessarily intervene in all obligations and bargains concerning heritable subjects, though they should be only temporary; as tacks, which, when they are verbal, last but for one year. In these no verbal agreement is binding, though it should be referred to the oath of the party; for, till writing is admitted, law gives both parties a right to refuse, as from an unfinished bargain; which is called locus puritatis. If, upon a verbal bargain of lands, part of the price shall be paid by him who was to purchase, the intervenus rei, the actual payment of money, creates a valid obligation, and gives a beginning to the contract of sale: And in general, wherever matters are no longer entire, the right to refuse seems to be excluded. An agreement, whereby a real right is passed from, or restricted, called pactum liberatorium, may be perfected verbally; for freedom is favourable, and the purpose of such agreement is rather to dissolve than to create an obligation. Writing is also essential to bargains made under condition that they shall be reduced into writing; for in such cases, it is pars contractus, that, till writing be admitted, both parties shall have liberty to withdraw. In the same manner, verbal or nuncupative testaments are rejected by our law; but verbal legacies are sustained, where they do not exceed L. 100 Scots.

3. Anciently, when writing was little used, deeds were executed by the party appending his seal to them; in presence of witnesses. For preventing frauds that might happen by appending seals to false deeds, the subscription also of the grantor was afterwards required, and, if he could not write, that of a notary. As it might be of dangerous consequence, to give full force to the subscription of the parties by initials, which is more easily counterfeited; our practice, in order to sustain such subscription, seems to require a proof, not only that the grantor used to subscribe in that way, but that de facto he had subscribed the deed in question; at least, such proof is required, if the instrumental witnesses be still alive.

4. As a further check, it was afterwards provided that all writings carrying any heritable right, and other deeds of importance, be subscribed by the principal parties, if they can subscribe; otherwise, by two notaries, before four witnesses specially designed. The subsequent practice extended this requisite of the designation of the witnesses to the case where the parties themselves subscribed. Custom has construed obligations for sums exceeding L. 100 Scots, to be obligations of importance. In a divisible obligation, ex gr. for a sum of money, though exceeding L. 100, the subscription of one notary is sufficient, if the creditor restricts his claim to L. 100: But, in an obligation indivisible, e.g. for the performance of a fact, if it be not subscribed in terms of the statute, it is void. When notaries thus attest a deed, the attestation or docquet must specially express that the grantor gave them a mandate to sign; nor is it sufficient that this be mentioned in the body of the writing.

5. In every deed, the name of him who writes it, with his dwelling place or other mark of distinction, must be inserted. The witnesses must both subscribe as witnesses, and their names and designations be inserted in the body of the deed.: And all subscribing witnesses must know the grantor, and either see him subscribe, or hear him him acknowledge his subscription; otherwise they are declared punishable as accessory to forgery. Deeds, decrees, and other securities, consisting of more than one sheet, may be written by way of book, in place of the former custom of pasting together the several sheets, and signing the joinings on the margin; provided each page be signed by the grantor, and marked by its number; and the telling clause expresses the number of pages.

6. Instruments of seisin are valid, if subscribed by one notary, before a reasonable number of witnesses; which is extended by practice to instruments of resignation. Two witnesses are deemed a reasonable number to every deed that can be executed by one notary. It is not necessary, that the witnesses to a notarial instrument, or execution, see the notary or messenger sign; for they are called as witnesses to the transaction which is attested, and not to the subscription of the person attesting.

7. A new requisite has been added to certain deeds since the union, for the benefit of the revenue: They must be executed on stamped paper, or parchment, paying a certain duty to the crown. Charters, instruments of resignation, seisins, and returns of lands holden of a subject, are charged with 2s. 3d. of duty; Bonds, tasks, contracts, and other personal obligations, paid at first 6d., to which a farther duty of 1s. has been since added. Bail bonds, bills, testaments, discharges, or acquittances of rent or of interest and judicial deeds, as notarial instruments, bonds of cautionry in suspensions, &c. are excepted.

8. The grantor's name and designation are essential, not properly as solemnities, but because no writing can have effect without them. Bonds were, by our ancient practice, frequently executed without filling up the creditor's name; and they passed from hand to hand, like notes payable to the bearer: But as there was no method for the creditor of a person possessed of these to secure them for his payment, all writings taken blank in the creditor's name are declared null, as covers to fraud; with the exception of indorsements of bills of exchange.

9. Certain privileged writings do not require the ordinary solemnities. 1. Holograph deeds (written by the grantor himself) are effectual without witnesses. The date of no holograph writing, except a bill of exchange, (see next paragraph) can be proved by the grantor's own attestation, in prejudice either of his heir or his creditors, but must be supported by other adminicles. 2. Testaments, if executed where men of skill in business cannot be had, are valid though they should not be quite formal: and let the subject of a testament be ever so valuable, one notary signing for the testator, before two witnesses, is in practice sufficient. Clergymen were frequently notaries before the reformation; and, though they were afterwards prohibited to act as notaries, the case of testaments is excepted: so that these are supported by the attestation of one minister, with two witnesses. 3. Discharges to tenants are sustained without witnesses, from their presumed rusticity, or ignorance in business. 4. Milline letters in remuneratoria, commissions, and fitted accounts in the course of trade, and bills of exchange, though they are not holograph, are, from the favour of commerce, sustained without the ordinary solemnities.

10. A bill of exchange is an obligation in the form of a mandate, whereby the drawer or mandant desires him to whom it is directed, to pay a certain sum, at the day and place therein mentioned, to a third party. Bills of exchange are drawn by a person in one country to his correspondent in another; and they have that name, because it is the exchange, or the value of money in one place compared with its value in another, that generally determines the precise extent of the sum contained in the draught. The creditor in the bill is sometimes called the possessor, or porteur. As parties to bills are of different countries, questions concerning them ought to be determined by the received custom of trading nations, unless where special statute interferes. For this reason, bills of exchange, though their form admits not of witnesses, yet prove their own dates, in questions either with the heir, or creditors of the debtor; but this doctrine is not extended to inland bills payable to the drawer himself.

11. A bill is valid, without the designation, either of the drawer, or of the person to whom it is made payable: It is enough, that the drawer's subscription appears to be truly his; and one's being possessor of a bill marks him out to be the creditor, if he bears the name given in the bill to the creditor: Nay, though the person drawn on should not be designed, his acceptance presumes that it was he whom the drawer had in his eye. Bills drawn blank, in the creditor's name, fall under the statutory nullity; for though indorsements of bills are excepted from it, bills themselves are not. Not only the person drawn upon must sign his acceptance, but the drawer must sign his draught, before any obligation can be formed against the acceptor: Yet it is sufficient in practice, that the drawer signs, before the bill be produced in judgment; though it should be after the death both of the creditor and acceptor. A creditor in a bill may transmit it to another by indorsement, though the bill should not bear to his order; by the same rule that other rights are transmissible by assignation, though they do not bear to assignees.

12. The drawer, by signing his draught, becomes liable for the value to the creditor in the bill, in case the person drawn upon either does not accept, or after acceptance does not pay; for he is presumed to have received value from the creditor at giving him the draught, though it should not bear for value received: But, if the drawer was debtor to the creditor in the bill before the draught, the bill is presumed to be given towards payment of the debt, unless it expressly bears for value. The person drawn upon, if he refuse to accept, while he has the drawer's money in his hands, is liable to him in damages. As a bill presumes value from the creditor, indorsement presumes value from the indorsee; who therefore, if he cannot obtain payment from the accepter, has recourse against the indorser, unless the bill be indorsed in these words, without recourse.

13. Payment of a bill, by the accepter, acquires both the drawer and him at the hands of the creditor; but it entitles the accepter, if he was not the drawer's debtor, to an action of recourse against him; and, if he was, to a ground of compensation. Where the bill does not bear value in the hands of the person drawn upon, it is presumed that he is not the drawer's debtor, and consequently he has recourse against the drawer, *ex mandato*.

14. Bills, when indorsed, are considered as so many bags of money delivered to the onerous indorsee; which therefore carry right to the contents, free of all burdens that do not appear on the bills themselves. Hence, a receipt or discharge, by the original creditor, if granted on a separate paper, does not exempt the acceptor from second payment to the indorsee; hence also, no ground of compensation competent to the acceptor against the original creditor can be pleaded against the indorsee: But, if the debtor shall prove, by the oath of the indorsee, that he paid not the full value for the indorsement, the indorsee is justly considered as but a name; and therefore all exceptions, receivable against the original creditor, will be sustained against him.

15. Bills must be negotiated by the possessor, against the person drawn upon, within a precise time, in order to preserve recourse against the drawer. In bills payable so many days after sight, the creditor has a discretionary power of fixing the payment somewhat sooner or later, as his occasions shall require. Bills payable on a day certain, need not be presented for acceptance till the day of payment, because that day can neither be prolonged nor shortened by the time of acceptance. For the same reason, the acceptance of bills, payable on a precise day, need not be dated: But, where a bill is drawn payable so many days after sight, it must; because there the term of payment depends on the date of the acceptance.

16. Though bills are, in strict law, due the very day on which they are made payable, and may therefore be protested on the day thereafter; yet there are three days immediately following the day of payment, called days of grace, within any of which the creditor may protest the bill: But if he delay protesting till the day after the last day of grace, he loses his recourse. Where a bill is protested, either for not acceptance, or not payment, the dishonour must be notified to the drawer or indorser, within three posts at farthest. This strictness of negotiation is confined to such bills as may be protested by the possessor upon the third day of grace: Where therefore bills are indorsed after the days of grace are expired, the indorsee is left more at liberty, and does not lose his recourse, though he should not take a formal protest for not payment, if, within a reasonable time, he shall give the indorser notice of the acceptor's refusing to pay. Not only does the possessor, who neglects strict negotiation, lose his recourse against the drawer, where the person drawn upon becomes afterwards bankrupt, but though he should continue solvent; for he may, in that case, recover payment from the debtor, and so is not to be indulged in an unnecessary process against the drawer, which he has tacitly renounced by his negligence. Recourse is preserved against the drawer, though the bill should not be duly negotiated, if the person drawn upon was not his debtor; for there the drawer can qualify no prejudice by the neglect of diligence, and he ought not to have drawn on one who owed him nothing.

Vol. II. Numb. 65.

17. The privileges superadded to bills by statute etc., that tho', by their form, they can have no clause of registration, yet, if duly protested, they are registrable within six months after their date in case of not acceptance, or in six months after the term of payment in the case of not payment; which registration is made the foundation of summary diligence, either against the drawer or indorser in the case of not acceptance, or against the acceptor in case of not payment. This is extended to inland bills, i.e. bills both drawn and made payable in Scotland. After acceptance, summary diligence lies against no other than the acceptor; the drawer and indorser must be pursued by an ordinary action. It is only the principal sum in the bill, and interest, that can be charged for summarily: The exchange, when it is not included in the draught, the re-exchange incurred by suffering the bill to be protested and returned, and the expense of diligence, must all be recovered by an ordinary action; because these are not liquid debts, and so must be previously constituted.

18. Bills, when drawn payable at any considerable distance of time after date, are denied the privileges of bills; for bills are intended for currency, and not to lie as a security in the creditor's hands. Bills are not valid which appear *ex facto* to be donations. No extrinsic stipulation ought to be contained in a bill which deviates from the proper nature of bills; hence, a bill to which a penalty is added, or with a clause of interest from the date, is null. Inland precepts drawn, not for money the medium of trade, but for fungibles, are null, as wanting writer's name and witnessess. It is not an agreed point whether promissory notes, without writer and witnessess, unless holograph, are probative. This however is certain, that they at no rate intitle to the privileges of bills.

19. As for the solemnities essential to deeds signed in a foreign country, when they come to receive execution in Scotland, it is a general rule, that no laws can be of authority beyond the dominions of the lawgiver. Hence, in strictness, no deed, though perfected according to the law of the place where it is signed, can have effect in another country where different solemnities are required to a deed of that sort. But this rigour is softened *ex comitate*, by the common consent of nations, that all personal obligations granted according to the law of that country where they are signed, are effectual everywhere, which obtains even in obligations to convey heritage. Conveyances themselves, of heritable subjects, must be perfected according to the law of the country where the heritage lies, and from which it cannot be removed.

20. A writing, while the grantor keeps it under his own power or his doer's, has no force; it becomes obligatory, only after it is delivered to the grantee himself, or found in the hands of a third person. As to which last, the following rules are observed: A deed found in the hands of one, who is doer both for the grantor and grantee, is presumed to have been put in his hands as done for the grantee. The presumption is also for delivery, if the deed appears in the hands of one who is a stranger to both. Where a deed is deposited in the hands of a third person, the terms of deposition may be proved by the oath of the depositary, unless where they are reduced reduced into writing. A deed appearing in the custody of the grantee himself, is considered as his absolute right; so much that the granter is not allowed to prove that it was granted in truth, otherwise than by a written declaration signed by the trustee, or by his oath.

21. The following deeds are effectual without delivery,

1. Writings containing a clause dispensing with the delivery: These are of the nature of revocable deeds, where the death of the granter is equivalent to delivery, because after death there can be no revocation.

2. Deeds in favour of children, even natural ones; for parents are the proper custodians or keepers of their children's writings. From a similar reason, postnuptial settlements by the husband to the wife need no delivery.

3. Rights which are not to take effect till the granter's death, or even where he reserves an interest to himself during his life; for it is presumed he holds the custody of these, merely to secure to himself such reserved interest.

4. Deeds that the granter lay under an antecedent natural obligation to execute, e.g., rights granted to a cautioner for his relief.

5. Mutual obligations, e.g., contracts; for every such deed, the moment it is executed, is a common evident to all the parties contracting. Lastly, the publication of a writing by registration, is equivalent to delivery.

Tit. 22. Of Obligations and Contracts arising from Consent, and of accessory Obligations.

Contracts consentual, i.e., which might, by the Roman law, be perfected by sole consent, without the intervention either of things or of writing, are sale, permutation, location, society, and mandate. Where the subject of any of these contracts is heritable, writing is necessary.

2. Sale is a contract, by which one becomes obliged to give something to another, in consideration of a certain price in current money to be paid for it. Things consisting merely in hope, may be the subject of this contract, as the draught of a net. Commodities, where their importation or use is absolutely prohibited, cannot be the subject of sale; and even in run goods, no action lies against the vender for non-delivery, if the buyer knew the goods were run.

3. Though this contract may be perfected before delivery of the subject, the property remains till then with the vender. See Tit. viii. 9. Yet till delivery, the hazard of its deterioration falls on the purchaser, because he has all the profits arising from it, after the sale. On the other hand, the subject itself perishes to the vender;

1. If it should perish through his fault, or after his undue delay to deliver it.

2. If a subject is sold as a fungible, and not as an individual, or corpus, e.g., a quantity of farm-wheat, sold without distinguishing the parcel to be delivered from the rest of the farm.

3. The periculum lies on the vender till delivery, if he be obliged by a special article in the contract to deliver the subject at a certain place.

4. Location is that contract, where an hire is stipulated for the use of things, or for the service of persons. He who lets his work or the use of his property to hire, is the locator or lessor; and the other, the conductor or lessee. In the location of things, the lessor is obliged to deliver the subject, fitted to the use it was let for; and the lessee must preserve it carefully, put it to no other use, and, after that is over, restore it. Where a workman or artificer lets his labour, and if the work is either not performed according to contract, or if it be insufficient, even from mere unskilfulness, he is liable to his employer in damages, for he ought not, as an artificer, to have undertaken a work to which he was not equal. A servant hired for a certain term, is intitled to his full wages, though from sickness or other accident he should be disabled for a part of his time; but, if he die before the term, his wages are only due for the time he actually served. If a master dies, or without good reason turns off, before the term, a servant who eats in his house, the servant is intitled to his full wages, and to his maintenance till that term: And, on the other part, a servant who without ground deserts his service, forfeits his wages and maintenance, and is liable to his master in damages.

5. Society or copartnership is a contract, whereby the several partners agree concerning the communication of loss and gain arising from the subject of the contract. It is formed by the reciprocal choice that the partners make of one another; and so is not constituted in the case of co-heirs, or of several legatees in the same subject. A copartnership may be so constituted, that one of the partners shall, either from his sole right of property in the subject, or from his superior skill, be intitled to a certain share of the profits, without being subjected to any part of the loss; but a society, where one partner is to bear a certain proportion of losses, without being intitled to any share of the profits, is justly reprobated. All the partners are intitled to shares of profit and loss proportioned to their several stocks, where it is not otherwise covenanted.

6. As partners are united, from a delectus personae, in a kind of brotherhood, no partner can, without a special power contained in the contract, transfer any part of his share to another. All the partners are bound in solidum by the obligation of any one of them, if he subscribe by the firm or social name of the company; unless it be a deed that falls not under the common course of administration. The company effects are the company property of the society subjected to its debts; so that no partner can claim a division thereof, even after the society is dissolved, till these are paid: And, consequently, no creditor of a partner can, by diligence, carry to himself the property of any part of the common stock, in prejudice of a company-creditor: but he may, by arrestment, secure his debtor's share in the company's hands, to be made forthcoming to him at the close of the copartnership, in so far as it is not exhausted by the company debts.

7. Society being founded in the mutual confidence among the socii, is dissolved, not only by the renunciation, but by the death of any one of them, if it be not otherwise specially covenanted. A partner, who renounces upon unfair views, or at a critical time, when his withdrawing may be fatal to the society, looses his partners from all their engagements to him, while he is bound to them for all the profits he shall make by his withdrawing, ing, and for the loss arising thereby to the company. Not only natural, but civil death, e.g., arising from a sentence inflicting capital punishment, makes one incapable to perform the duties of a partner, and consequently dissolves the society. In both cases, of death and renunciation, the remaining partners may continue the copartnership, either expressly, by entering into a new contract; or tacitly, by carrying on their trade as formerly. Public trading companies are now every day constituted, with rules very different from those which either obtained in the Roman law, or at this day obtain in private societies. The proprietors or partners in these, though they may transfer their shares, cannot renounce; nor does their death dissolve the company, but the share of the deceased descends to his representative.

8. A joint trade is not a copartnership, but a momentary contract, where two or more persons agree to contribute a sum, to be employed in a particular course of trade, the produce whereof is to be divided among the adventurers, according to their several shares, after the voyage is finished. If, in a joint trade, that partner who is intrusted with the money for purchasing the goods, should, in place of paying them in cash, buy them upon credit, the furnisher who followed his faith alone in the sale, has no recourse against the other adventurers; he can only recover from them what of the buyer's share is yet in their hands. Where any one of the adventurers, in a joint trade, becomes bankrupt, the others are preferable to his creditors, upon the common stock, as long as it continues undivided, for their relief of all the engagements entered into by them on account of the adventure.

9. Mandate is a contract, by which one employs another to manage any business for him; and by the Roman law, it must have been gratuitous. It may be constituted tacitly, by one's suffering another to act in a certain branch of his affairs, for a tract of time together, without challenge. The mandatory is at liberty not to accept of the mandate; and, as his powers are solely founded in the mandant's commission, he must, if he undertakes it, strictly adhere to the directions given him: Nor is it a good defence, that the method he followed was more rational; for in that his employer was the proper judge. Where no special rules are prescribed, the mandatory, if he acts prudently, is secure, whatever the success may be; and he can sue for the recovery of all the expenses reasonably disbursed by him in the execution of his office.

10. Mandates may be general, containing a power of administering the mandant's whole affairs; but no mandate implies a power of disposing gratuitously of the constituent's property; nor even of selling his heritage for an adequate price: But a general mandatory may sell such of the moveables as must otherwise perish. No mandatory can, without special powers, transact doubtful claims belonging to his constituent, or refer them to arbiters.

11. Mandates expire, 1. By the revocation of the employer, though only tacit, as if he should name another mandatory for the same business. 2. By the renunciation of the mandatory; even after he has executed part of his commission, if his office be gratuitous. 3. By the death, either of the mandant or mandatory: But if matters are not entire, the mandate continues in force, notwithstanding such revocation, renunciation, or death. Procuratories of resignation, and precepts of seisin, are made out in the form of mandates; but, because they are granted for the sole benefit of the mandatory, all of them, excepting precepts of clare constat, are declared to continue after the death either of the grantor or grantee. Deeds which contain a clause or mandate for registration, are for the same reason made registrable after the death of either.

12. The favour of commerce has introduced a tacit mandate, by which masters of ships are empowered to contract in name of their executors or employers, for repairs, ship-provisions, and whatever else may be necessary for the ship or crew; so as to oblige, not themselves only, but their employers. Whoever has the actual charge of the ship is deemed the master, though he should have no commission from the executors, or should be substituted by the master in the direction of the ship without their knowledge. Executors are liable, whether the master has paid his own money to a merchant for necessaries, or has borrowed money to purchase them. The furnisher or lender must prove that the ship-needed repairs, provisions, &c., to such an extent; but he is under no necessity to prove the application of the money or materials to the ship's use. If there are several executors, they are liable singuli in solidum. In the same manner the undertaker of any branch of trade, manufacture, or other land-negotiation, is bound by the contracts of the infractors whom he lets over it, in so far as relates to the subject of the prepositura.

13. Contracts and obligations, in themselves imperfect, receive strength, by the contractor or his heirs doing any act thereafter which imports an approbation of them, and consequently supplies the want of an original legal consent. This is called homologation; and it takes place even in deeds intrinsically null, whether the nullity arises from the want of statutory solemnities, or from the incapacity of the grantor. It cannot be inferred, 1. By the act of a person who was not in the knowledge of the original deed; for one cannot approve what he is ignorant of. 2. Homologation has no place where the act or deed which is pleaded as such can be ascribed to any other cause; for an intention to come under an obligation is not presumed.

14. Quasi-contracts are formed without explicit consent, by one of the parties doing something that by its nature either obliges him to the other party, or the other party to him. Under this class may be reckoned tutory, &c., the entry of an heir, negotiorum gestio, indebiti solatio, communion of goods between two or more common proprietors, and mercium judicium levende navis causa. Negotiorum gestio forms those obligations which arise from the management of a person's affairs in his absence, by another, without a mandate. As such manager acts without authority from the proprietor, he ought to be liable in exact diligence, unless he has from friendship interposed in affairs which admitted no delay; and he is accountable for his intromissions with interest. On the other other part, he is intitled to the recovery of his necessary disbursements on the subject, and to be relieved of the obligations in which he may have bound himself in consequence of the management.

15. Indebiti solutio, or the payment to one of what is not due to him, if made through any mistake, either of fact, or even of law, founds him who made the payment in an action against the receiver for repayment (conditio indebiti.) This action does not lie, i. If the sum paid was due ex aquitate, or by a natural obligation; for the obligation to retort is founded solely in equity.

2. If he who made the payment knew that nothing was due; for qui consulto dat quod non debet, praesumitur donare.

16. Where two or more persons become common proprietors of the same subject, either by legacy, gift or purchase, without the view of co-partnership, an obligation is thereby created among the proprietors to communicate the profit and loss arising from the subject, while it remains common: And the subject may be divided at the suit of any having interest. This division, where the question is among the common proprietors, is according to the valuation of their respective properties: But, where the question is between the proprietors and those having servitudes upon the property, the superficie is only divided, without prejudice to the property. Commonalties belonging to the King, or to royal boroughs, are not divisible. Lands lying runrig, and belonging to different proprietors, may be divided, with the exception of borough and incorporated acres; the execution of which is committed to the judge-ordinary; or justices of the peace.

17. The throwing of goods overboard, for lightening a ship in a storm, creates an obligation, whereby the owners of the ship and goods saved are obliged to contribute for the relief of those whose goods were thrown overboard, that so all may bear a proportional loss of the goods ejected for the common safety. In this contribution, the ship's provisions suffer no diminution. A master who has cut his mast, or parted with his anchor, to save the ship, is intitled to this relief; but if he has lost them by the storm, the loss falls only on the ship and freight. If the ejection does not save the ship, the goods preserved from shipwreck are not liable in contribution. Ejection may be lawfully made, if the master and a third part of the mariners judge that measure necessary, though the owner of the goods should oppose it: And the goods ejected are to be valued at the price that the goods of the same sort which are saved shall be afterwards sold for.

18. There are certain obligations, which cannot subsist by themselves, but are accessions to, or make a part of other obligations. Of this sort are fidejussion, and the obligation to pay interest. Cautionry, or fidejussion, is that obligation by which one becomes engaged as security for another, that he shall either pay a sum, or perform a deed.

19. A cautioner for a sum of money may be bound, either simply as cautioner for the principal debtor, or conjunctly and severally for and with the principal debtor. The first has, by our customs, the beneficium ordinis, or of discussion; by which the creditor is obliged to discuss the proper debtor, before he can insist for payment against the cautioner. Where one is bound as full debtor with and for the principal, or conjunctly and severally with him, the two obligants are bound equally in the same obligation, each in solidum; and consequently, the cautioner, though he is but an accessory, may be sued for the whole, without either disculling, or even citing the principal debtor. Cautioners for performance of facts by another, or for the faithful discharge of an office, e.g. for factors, tutors, &c., cannot by the nature of their engagement be bound conjunctly and severally with the principal obligant, because the fact to which the principal is bound cannot possibly be performed by any other. In such engagements, therefore, the failure must be previously constituted against the proper debtor, before action can be brought against the cautioner, for making up the loss of the party suffering.

20. The cautioner, who binds himself at the desire of the principal debtor, has an actio mandati, or of relief against him, for recovering the principal and interest paid by himself to the creditor, and for necessary damages; which action lies de jure, though the creditor should not assign to him on payment. As relief against the debtor is implied in fidejussory obligations, the cautioner, where such relief is cut off, is no longer bound: Hence, the defence of prescription frees the cautioner, as well as the principal debtor.

21. But, i. Where the cautionry is interposed to an obligation merely natural, the relief is restricted to the sums that have really turned to the debtor's profit. 2. A cautioner who pays without citing the debtor, loses his relief, in so far as the debtor had a relevant defence against the debt, in whole or in part. Relief is not competent to the cautioner, till he either pays the debt, or is distresed for it; except, i. Where the debtor is expressly bound to deliver to the cautioner his obligation cancelled, against a day certain, and has failed; or, 2. Where the debtor is vergens ad inpianum; in which case the cautioner may, by proper diligence, secure the debtor's funds for his own relief, even before payment or distress.

22. A right of relief is competent de jure to the cautioner who pays against his co-cautioners, unless where the cautioner appears to have renounced it. In consequence of this implied relief, a creditor, if he shall grant a discharge to any one of the cautioners, must, in demanding the debt from the others, deduct that part, as to which he has cut off their relief by that discharge. Where a cautioner in a bond signs a bond of corroboration, as a principal obligant with the proper debtor, and with them a new cautioner, the cautioner in the new bond is intitled to a total relief against the first cautioner, at whose desire he is presumed to be bound.

23. Cautionry is also judicial, as in a suspension. It is sufficient to loose the cautioner, that when he became bound, the suspender had good reason to suspend, e.g. if the charger had at that period no title, or had not then performed his part, though these grounds of suspension should be afterwards taken off. In all maritime causes, where the parties are frequently foreigners, the defender must give caution judicio fit et judicatum solvi: Such cautioner gets free by the death of the defender before sentence; Sentence; but he continues bound, though the cause store it cum omni obventione et causa, and is therefore liable in the interest of it, as being truly an accessory of the subject itself. It is also from the nature of the transaction, that interest is in certain cases allowed to merchants or others in name of damages.

28. Interest is due by express pactio, where there is a clause in a bond or obligation, by which money is made to carry interest. An obligation is not lawful, where it is agreed on, that the yearly interest of the sum lent, if it should not be paid punctually as it falls due, shall be accumulated into a principal sum bearing interest; but an obligation may be lawfully granted, not only for the sum truly lent, but for the interest to the day at which the obligation is made payable, whereby the intermediate interest is accumulated into a principal sum from the term of payment. Interest may be also due by implied pactio. Thus, where interest upon a debt is by a letter promised for time past, such promise implies a pactio for interest as long as the debt remains unpaid; thus also, the use of payment of interest presumes a pactio, and when interest is expressed for one term, it is presumed to be bargained for till payment.

29. The subject matter of all obligations consists either of things, or of facts. Things exempted from commerce cannot be the subject of obligation. See Tit. viii. 2, et seq. One cannot be obliged to the performance of a fact naturally impossible; nor of a fact in itself immoral, for that is also in the judgment of law impossible. Since impossible obligations are null, no penalty or damage can be incurred for non-performance; but it is otherwise, if the fact be in itself possible, though not in the debtor's power; in which case the rule obtains, locum faci imprefstabilis subit damnum et interesse.

30. An obligation, to which a condition is added, either naturally or morally impossible, is in the general case null; for the parties are presumed not to have been serious. But such obligation is valid, and the condition thereof held pro non scripta, i.e., in testaments; 2. In obligations, to the performance of which the grantor lies under a natural tie, as in bonds of provision to a child. Where an obligation is granted under a condition, lawful but unfavourable, e.g., that the creditor shall not marry without the consent of certain friends, no more weight is given to the condition than the judge thinks reasonable. A condition, which is in some degree in the power of the creditor himself, is held as fulfilled, if he has done all he could to fulfil it. Implement or performance cannot be demanded in a mutual contract, by that party who himself declines, or cannot fulfil the counterpart.

31. Donation, so long as the subject is not delivered to the donee, may be justly ranked among obligations; and it is that obligation which arises from the mere good will and liberality of the grantor. Donations imply no warrantice, but from the future facts of the donor. They are hardly revocable by our law for ingratitude, though it should be of the grossest kind: Those between man and wife are revocable by the donor, even after the death of the donee; but remuneratory grants, not being truly donations, cannot be so revoked. That special sort of donation, which is constituted verbally, is called a promise. The Roman law intitled all donors to the beneficium. necifium competentiae, in virtue of which they might retain such part of the donation as was necessary for their own subsistence. Our law allows this benefit to fathers, with respect to the provisions granted to their children, and to grandfathers, which is a natural consequence of children's obligation to aliment their indigent parents; but to no collateral relation, not even to brothers.

32. Donations, made in contemplation of death, or mortis causa, are of the nature of legacies, and like them revocable: Consequently, not being effectual in the grantor's life, they cannot compete with any of his creditors; not even with those whose debts were contracted after the donation. They are understood to be given from a personal regard to the donee, and therefore fall by his predecease. No deed, after delivery, is to be presumed a donatio mortis causa; for revocation is excluded by delivery.

33. Deeds are not presumed, in dubio, to be donations. Hence, a deed by a debtor to his creditor, if donation be not expressed, is presumed to be granted in security or satisfaction of the debt; but bonds of provision to children are, from the presumption of paternal affection, construed to be intended as an additional patrimony: Yet a tocher, given to a daughter in her marriage-contract, is presumed to be in satisfaction of all former bonds and debts; because marriage contracts usually contain the whole provisions in favour of the bride. One who aliments a person that is come of age, without an express pacton for board, is presumed to have entertained him as a friend, unless in the case of those who earn their living by the entertainment or board of strangers. But alimony given to minors, who cannot bargain for themselves, is not accounted a donation; except either where it is presumed, from the near relation of the person alimenting, that it was given ex pietate; or where the minor had a father or curators, with whom a bargain might have been made.

Tit. 23. Of the Diffusion or Extinction of Obligations.

Obligations may be dissolved by performance or implement, consent, compensation, novation, and confusion. 1. By specific performance: Thus, an obligation for a sum of money is extinguished by payment. The creditor is not obliged to accept of payment by parts, unless where the sum is payable by different divisions. If a debtor in two or more separate bonds to the same creditor, made an indefinite payment, without ascribing it, at the time, to any one of the obligations, the payment is applied, 1. To interest, or to sums not bearing interest. 2. To the sums that are least secured, if the debtor thereby incurs no rigorous penalty. But, 3. If this application be penal on the debtor, e.g. by suffering the legal of an adjudication to expire, the payment will be so applied as to save the debtor from that forfeiture. Where one of the debts is secured by a cautioner, the other not, the application is to be so made, ceteris paribus, that both creditor and cautioner may have equal justice done to them.

2. Payment made by the debtor upon a mistake in fact, to one whom he believed, upon probable grounds, to have the right of receiving payment, extinguishes the obligation. But payment made to one, to whom the law denies the power of receiving it, has not this effect; as if a debtor, seized by letters of caption, should make payment to the messenger; for ignorantia juris neminem excusat. In all debts, the debtor, if he be not interpellated, may safely pay before the term, except in tack-duties or feu-duties; the payment whereof, before the terms at which they are made payable, is construed to be collusive, in a question with a creditor of the landlord or superior. Payment is in dubio presumed, by the voucher of the debt being in the hands of the debtor; chirographum, apud debitorem repertum, praesumitur solutum.

3. Obligations are extinguishable by the consent of the creditor, who, without full implement, or even any implement, may renounce the right constituted in his own favour. Though a discharge or acquittance, granted by one whom the debtor bona fide took for the creditor, but who was not, extinguishes the obligation, if the satisfaction made by the debtor was real; yet where it is imaginary, the discharge will not screen him from paying to the true creditor the debt that he had made no prior satisfaction for. In all debts which are constituted by writing, the extinction, whether it be by specific performance, or bare consent, must be proved, either by the oath of the creditor, or by a discharge in writing; and the same solemnities which law requires in the obligation, are necessary in the discharge: But, where payment is made, not by the debtor himself, but by the creditor's intromission with the rents of the debtor's estate, or by delivery to him of goods in name of the debtor, such delivery or intromission, being facti, may be proved by witnesses, though the debt should have been not only constituted by writing, but made real on the debtor's lands by adjudication.

4. A discharge, though it should be general, of all that the grantor can demand, extends not to debts of an uncommon kind, which are not presumed to have been under the grantor's eye. This doctrine applies also to general assignments. In annual payments, as of rents, feu-duties, interest, &c. three consecutive discharges by the creditor, of the yearly or termly duties, presume the payment of all proceedings. Two discharges by the ancestor, and the third by the heir, do not infer this presumption, if the heir was ignorant of the ancestor's discharges. And discharges by an administrator, as a factor, tutor, &c. presume only the payment of all preceding duties incurred during his administration. This presumption arises from repeating the discharges thrice successively; and so does not hold in the case of two discharges, though they should include the duties of three or more terms.

5. Where the same person is both creditor and debtor to another, the mutual obligations, if they are for equal sums, are extinguished by compensation; if for unequal, still the lesser obligation is extinguished, and the greater diminished, as far as the concourse of debt and credit goes. To found compensation, 1. Each of the parties must be debtor and creditor at the same time. 2. Each. of them must be debtor and creditor in his own right.

3. The mutual debts must be of the same quality: Hence, a sum of money cannot be compensated with a quantity of corns; because, till the prices are fixed, at which the corns are to be converted into money, the two debts are incommensurable. Lastly, compensation cannot be admitted, where the mutual debts are not clearly ascertained, either by a written obligation, the sentence of a judge, or the oath of the party. Where this requires but a short discussion, sentence for the pursuer is delayed for some time, *ex equitate*, that the defender may make good his ground of compensation. Where a debt for fungibles is ascertained in money, by the sentence of a judge, the compensation can have no effect farther back than the liquidation, because, before sentence, the debts were incommensurable: But where a debt for a sum of money is, in the course of a suit, confirmed by the oath of the debtor, the compensation, after it is admitted by the judge, operates, *retro*, so far as concerns the currency of interest, to the time that, by the parties acknowledgment, the debt became due; for, in this case, the debtor's oath is not what creates the debt, or makes it liquid; it only declares that such a liquid sum was truly due before. Compensation cannot be offered after decree, either by way of suspension or reduction; unless it has been formerly pleaded, and unjustly repelled. Decrees in absence are excepted.

6. The right of retention, which bears a near resemblance to compensation, is chiefly competent, where the mutual debts, not being liquid, cannot be the ground of compensation; and it is sometimes admitted *ex equitate*, in liquid debts, where compensation is excluded by statute: Thus, though compensation cannot be pleaded after decree, either against a creditor or his assignee; yet, if the original creditor should become bankrupt, the debtor, even after decree, may retain against the assignee, till he gives security for satisfying the debtor's claim against the cedent. This right is frequently founded in the expense disbursed or work employed on the subject retained, and so arises from the mutual obligations incumbent on the parties. But retention may be sustained, though the debt due to him who claims it does not arise from the nature of the obligation by which he is debtor: Thus, a factor on a land estate may retain the sums levied by him in consequence of his factory, not only till he be paid of the disbursements made on occasion of such estate, but also till he be discharged from the separate engagements he may have entered into on his constituent's account.

7. Obligations are dissolved by novation, whereby one obligation is changed into another, without changing either the debtor or creditor. The first obligation being thereby extinguished, the cautioners in it are loosed, and all its consequences discharged; so that the debtor remains bound only by the last. As a creditor to whom a right is once constituted, ought not to lose it by implication, novation is not easily presumed, and the new obligation is construed to be merely corroborative of the old; but, where the second obligation expressly bears to be in satisfaction of the first, these words must necessarily be explained into novation. Where the creditor accepts of a new debtor, in place of the former who is discharged, this method of extinction is called delegation.

8. Obligations are extinguished *confusione*, where the debt and credit meet in the same person, either by succession or singular title, e.g. when the debtor succeeds to the creditor, or the creditor to the debtor, or a stranger to both, for one cannot be debtor to himself. If the succession, from which the *confusio* arises, happens afterwards to be divided, so as the debtor and creditor come again to be different persons; the *confusio* does not produce an extinction, but only a temporary suspension of the debt.

**Tit. 24. Of Assignations.**

Heritable rights, when they are cloathed with investment, are transmitted by disposition, which is a writing containing procuratory or resignation and precept of feifin; but those which either require no feifin, or on which feifin has actually followed, are transmissible by simple assignation. He who grants the assignation, is called the cedent; and he who receives it, the assignee or feifionary: If the assignee conveys his right to a third person, it is called a translation; and if he assigns it back to the cedent, a retrocession. Certain rights are, from the uses to which they are destined, incapable of transmission, as alimentary rights: Others cannot be assigned by the person invested in them, without special powers given to him, as tacks, reversions: The transmission of a third sort, is not presumed to be intended, without an express conveyance; as of paraphernal goods, which are to proper to the wife, that a general assignation by her to her husband, or all that did or should belong to her at her decease, does not comprehend them. A hereditary right is, by its nature, incapable of a proper transmission; but its profits may be assigned, while it subsists.

2. Assignations must not only be delivered to the assignee, but intimated by him to the debtor. Intimations are considered as so necessary for completing the conveyance, that in a competition between two assignments, the last, if first intimated, is preferred.

3. Though, regularly, intimation to the debtor is made by an instrument, taken in the hands of a notary, by the assignee or his procurator; yet the law admits equipollencies, where the notice of the assignment given to the debtor is equally strong. Thus, a charge upon letters of horning at the assignee's instance, or a suit brought by him against the debtor, supplies the want of intimation; these being judicial acts, which expose the conveyance to the eyes both of the judge and of the debtor; or the debtor's promise of payment by writing to the assignee, because that is in effect a corroborating of the original debt. The assignee's possession of the right, by entering into payment of the rents or interest, is also equal to an intimation; for it imports, not only notice to the debtor, but his actual compliance: But the debtor's private knowledge of the assignment is not sustained as intimation.

4. Certain conveyances need no intimation. 1. Indorsements of bills of exchange: for these are not to be fettered with forms, introduced by the laws of particular states. 2. Bank-notes are fully conveyed by the bare delivery. delivery of them; for as they are payable to the bearer, their property must pass with their possession. 3. Adjudication, which is a judicial conveyance, and marriage, which is a legal one, carry the full right of the subjects thereby conveyed, without intimation: nevertheless, as there is nothing in these conveyances which can of themselves put the debtor in mala fide, he is therefore in tuto to pay to the wife, or to the original creditor in the debt adjudged, till the marriage or adjudication be notified to him. Assignments of moveable subjects, though they be intimated, if they are made retenta possessione, (the cedent retaining the possession,) cannot hurt the cedent's creditors; for such rights are presumed, in all questions with creditors, to be collusive, and granted in trust for the cedent himself.

5. An assignation carries to the assignee the whole right of the subject conveyed, as it was in the cedent; consequently, he may use diligence, either in his cedent's name while he is alive, or in his own.

6. After an assignation is intimated, the debtor cannot prove payment, or compensation, by the oath of the cedent, who has no longer any interest in the debt; unless the matter has been made litigious by an action commenced prior to the intimation: But the debtor may refer to the oath of the assignee, who is in the right of the debt, that the assignment was gratuitous, or in trust for the cedent; either of which being proved, the oath of the cedent will affect the assignee. If the assignation be in part onerous, and in part gratuitous, the cedent's oath is good against the assignee, only in so far as his right is gratuitous. All defences competent against the original creditor in a moveable debt, which can be proved otherwise than by his oath, continue relevant against even an onerous assignee; whose right can be no better than that of his author, and must therefore remain affected with all the burdens which attended it in the author's person.

Tit. 25. Of Arrestments and Pounding.

The diligences, whereby a creditor may affect his debtor's moveable subjects, are arrestment and pounding. By arrestment is sometimes meant the securing of a criminal's person till trial; but as it is understood in the rubric of this title, it is the order of a judge, by which he who is debtor in a moveable obligation to the arrestor's debtor, is prohibited to make payment or delivery till the debt due to the arrestor be paid or secured. The arrestor's debtor is usually called the common debtor; because, where there are two or more competing creditors, he is debtor to all of them. The person in whose hands the diligence is used, is styled the arrestee.

2. Arrestment may be laid on, by the authority either of the supreme court, or of an inferior judge. In the first case, it proceeds either upon special letters of arrestment, or on a warrant contained in letters of horning; and it must be executed by a messenger. The warrants granted by inferior judges are called precepts of arrestment, and they are executed by the officer proper to the court. Where the debtor to the common debtor is a pupil, arrestment is properly used in the hands of the tutor, as the pupil's administrator: This doctrine may perhaps extend to other general administrators, as commissioner, &c. But arrestment, used in the hands of a factor or steward, cannot found an action of forthcoming without calling the constituent. Where the debtor to the common debtor is a corporation, arrestment must be used in the hands of the directors or treasurer, who represent the whole body. Arrestment, when it is used in the hands of the debtor himself, is inept; for that diligence is intended only as a restraint upon third parties.

3. All debts, in which one is personally bound, though they should be heritably secured, are grounds upon which the creditor may arrest the moveable estate belonging to his debtor. Arrestment may proceed on a debt, the term of payment whereof is not yet come, in case the debtor be vergens ad inopiam. If a debt be not yet constituted by decree or registration, the creditor may raise and execute a summons against his debtor for payment, on which pending action arrestment may be used, in the same manner as inhibition, which is called arrestment upon a dependence. If one's ground of credit be for the performance of a fact, or if his depending process be merely declaratory, without a conclusion of payment or delivery, such claims are not admitted to be sufficient grounds for arrestment.

4. Moveable debts are the proper subject of arrestment; under which are comprehended conditional debts, and even depending claims. For lessening the expense of diligence to creditors, all bonds which have not been made properly heritable by feifin are declared arrestable. But this does not extend to adjudications, wadsets, or other personal rights of lands, which are not properly debts. Certain moveable debts are not arrestable. 1. Debts due by bill, which pass from hand to hand as bags of money. 2. Future debts; for though inhibition extends to adquirenda as well as adquisita, yet arrestment is limited, by its warrant, to the debt due at the time of serving it against the arrestee. Hence, an arrestment of rents or interest carries only those that have already either fallen due, or at least become current. Claims, depending on the issue of a suit, are not considered as future debts; for the sentence, when pronounced, has a retrospective to the period at which the claim was first founded. The like doctrine holds in conditional debts. 3. Alimentary debts are not arrestable; for these are granted on personal considerations, and so are not communicable to creditors; but the past interest due upon such debt may be arrested by the person who has furnished the alimony. One cannot secure his own effects to himself for his maintenance, so as they shall not be affecitable by his creditors. Salaries annexed to offices granted by the king, and particularly those granted to the judges of the Session, and the fees of servants, are considered as alimentary funds; but the surplus fee, over and above what is necessary for the servant's personal uses, may be arrested.

5. If, in contempt of the arrestment, the arrestee shall make payment of the sum, or deliver the goods arrested, to the common debtor, he is not only liable criminally for breach of arrestment, but he must pay the debt again to the arrestor. Arrestment is not merely prohibitory, as inhibitions are; but is a step of diligence which founds the user in a subsequent action, whereby the property of the subject arrested may be adjudged to him: It therefore does not, by our later practice, fall by the death of the arrestee, but continues to subsist, as a foundation for an action of forthcoming against his heir, while the subject arrested remains in medio. Far less is arrestment lost, either by the death of the arrester, or of the common debtor.

6. Where arrestment proceeds on a depending action, it may be loosed by the common debtor's giving security to the arrester for his debt, in the event it shall be found due. Arrestment founded on decrees, or on registred obligations, which in the judgment of law are decrees, cannot be loosed, but upon payment or confignation; except,

1. Where the term of payment of the debt is not yet come, or the condition has not yet existed.

2. Where the arrestment has proceeded on a registred contract, in which the debts or mutual obligations are not liquid.

3. Where the decree is suspended, or turned into a libel; for, till the suspension be discussed, or the pending action concluded, it cannot be known whether any debt be truly due. A loosing takes off the nexus, which had been laid on the subject arrested; so that the arrestee may thereafter pay safely to his creditor, and the cautioner is substituted in place of the arrestment, for the arrester's security: Yet the arrester may, while the subject continues with the arrestee, pursue him in a forthcoming, notwithstanding the loosing.

7. Arrestment is only an inchoate or begun diligence; to perfect it, there must be an action brought by the arrester against the arrestee, to make the debt or subject arrested forthcoming. In this action, the common debtor must be called for his interest, that he may have an opportunity of excepting to the lawfulness or extent of the debt, on which the diligence proceeded. Before a forthcoming can be pursued, the debt due by the common debtor to the arrester, must be liquidated; for the arrester can be no further entitled to the subject arrested than to the extent of the debt due to him by the common debtor. Where the subject arrested is a sum of money, it is, by the decree of forthcoming, directed to be paid to the pursuer towards satisfying his debt; where goods are arrested, the judge ordains them to be exposed sale, and the price to be delivered to the pursuer. So that in either case, decrees of forthcoming are judicial assignments to the arrester of the subject arrested.

8. In all competitions, regard is had to the dates, not of the grounds of debt, but of the diligences proceeding upon them. In the competition of arrestments, the preference is governed by their dates, according to the priority even of hours, where it appears with any certainty which is the first. But, as arrestment is but a begun diligence, therefore if a prior arrester shall neglect to insist in an action of forthcoming for such a time as may be reasonably construed into a detention of his begun diligence, he loses his preference. But, as dereliction of diligence is not easily presumed, the distance of above two years, between the first arrestment and the decree of forthcoming, was found not to make such a mora as to intitle the posterior arrester to a preference. This rule of preference, according to the dates of the several arrestments, holds, by our present practice, whether they have proceeded on a decree, or on a dependence; on debts not yet payable, or on debts already payable; provided the pendency shall have been closed, or the debt have become payable, before the issue of the competition.

9. In the competition of arrestments with assignations, an assignation by the common debtor, intimated before arrestment, is preferable to the arrestment. If the assignation is granted before arrestment, but not intimated till after it, the arrester is preferred.

10. Pointing is that diligence affecting moveable subjects, by which their property is carried directly to the creditor. No pointing can proceed, till a charge be given to the debtor to pay or perform, and the days thereof be expired, except pointings against vassals for their fees-duties, and pointings against tenants for rent, proceeding upon the landlord's own decree; in which the ancient custom of pointing without a previous charge continues. A debtor's goods may be pointed by one creditor, though they have been arrested before by another; for arrestment being but an imperfect diligence, leaves the right of the subject still in the debtor, and so cannot hinder any creditor from using a more perfect diligence, which has the effect of carrying the property directly to himself.

11. No cattle pertaining to the plough, nor instruments of tillage, can be pointed in the time of labouring or tilling the ground, unless where the debtor has no other goods. By labouring time is understood, that time, in which that tenant, whose goods are to be pointed, is ploughing, though he should have been earlier or later than his neighbours; but summer-fallowing does not fall under this rule.

12. In the execution of pointing, the debtor's goods must be apprised, first on the ground of the lands where they are laid hold on, and a second time at the market-crofs of the jurisdiction, by the stated apprisers thereof; or, if there are none, by persons named by the messenger or other officer employed in the diligence. Next, the messenger must, after public intimation by three oysles, declare the value of the goods according to the second apprisement, and require the debtor to make payment of the debt, including interest and expenses. If payment shall be offered to the creditor, or in his absence to his lawful attorney; or if, in case of refusal by them, confignation of the debt shall be made in the hands of the judge ordinary or his clerk, the goods must be left with the debtor; if not, the messenger ought to adjudge and deliver them over, at the apprised value, to the usher of the diligence towards his payment: And the debtor is intitled to a copy of the warrant and executions, as a voucher that the debt is discharged in whole or in part by the goods pointed.

13. Ministers may point for their stipends, upon one apprisement on the ground of the lands; and landlords were always in use to point so, for their rents. Apprisement of the goods at the market-crofs of the next royal borough, or even of the next head-borough of fleawarry or regality, though these jurisdictions be abolished, is declared as sufficient as if they were carried to the head-borough of the shire. Pointing, whether it be considered as a sentence, or as the execution of a sentence, must be proceeded proceeded in between sun-rising and sun-setting; or at least it must be finished before the going off of daylight. The powers of the officer employed in the execution of pointings, are not clearly defined by custom, in the case of a third party claiming the property of the goods to be pointed. This is certain, that he may take the oath of the claimant, upon the verity of his claim; and if from thence it shall appear that the claimant's title is collusive, he ought to proceed in the diligence; but, if there remains the least doubt, his safest course is to deliver the goods to the claimant, and to express in his execution the reasons why pointing did not proceed.

14. Any person who stops a pointing via facti, on groundless pretences, is liable, both criminally, in the pains of deforcement, (see Tit xxxiii. 15.) and civilly, in the value of the goods which might have been pointed by the creditor.

Tit. 26. Of Prescriptions.

Prescription, which is a method, both of establishing and of extinguishing property, is either positive or negative. Positive prescription is generally defined, as the Roman usufructio, 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 annihilation 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 forever, 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, annual rents, or other heritages, peaceably, in virtue of infestments, for forty 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 infestation. The whole course of possession must by the act be founded on seisin, and consequently no part thereof on the bare right of appurtenance; but forty 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 infestation as part and pertinent of another subject specially expressed, has been explained, Tit. xiii. 6.

3. The act requires, that the possessor produce, as his title of prescription, a charter of the lands, preceding the forty years possession, with the seisin following on it; and where there is no charter extant, seisins, one or more standing together for forty 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 forty 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; so 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 falshood. 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 lapse of forty years, was introduced into our law long before the positive, by 1469, c. 29.—1474, c. 55. This prescription is now amplified by the forelaid act 1617, which has extended it to all actions competent upon heritable bonds, reverions, and others whatsoever; unless where the reverions are either incorporated in the body of the wadset-right, or registred in the register of reverions: And reverions so incorporated, or registred, 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 statute, in certain rights and debts. Actions of spuizie, 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 spuizies and ejections, the pursuer was intitled, 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., mony 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 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 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 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 returns, prescribe, if not pursued within twenty 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 liferentor, 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 confessional contracts, to the constitution of which writing is not necessary. But all the above mentioned debts, may, after the five years, be proved, either by the oath or the writing of the debtor; of which above, § 6. A quinquennial 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 credito, 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 purfied, 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 twenty 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 twenty 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 prescription 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 forever 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 forty years. As this defeated the purpose of the acts establishing these prescriptions, all processes upon warnings, spuizies, ejectments, 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 wakened within that time; see Tit. 30.

10. Certain obligations are lost by the lapse of less than forty 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, produce no action, where the creditor has been long silent, unless the subsistence of the debt be proved by the debtor's oath; but the precise time is not fixed by practice. Thus also, a receipt for bills granted by a writer to his employer, not inflicted upon for twenty-three 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 forty 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, presumptions 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 forty years, he is not liable.

12. Prescription runs de momento in momentum: The 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 fortieth 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, thirteen 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, 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 thirty 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 insolitus. Minors are expressly excepted in several of the short prescriptions, as 1579, c. 81.—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 rerum 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 removings, 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 sine 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 eliciting 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 forty 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 praescribitur. 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 forty 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 horning, 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 forty years. 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 a bill, and be registered within sixty 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 compleat 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. Tit. 27. Of Succession in heritable Rights.

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 definition, 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 definition. The first is in all cases preferred to the other, as presumption must yield to truth.

1. 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, descendents' sons are prefered 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 descendents, grand-children succeed; and in default of them, great-grand-children; and so on in infinitum; preferring, as in the former case, males to females, and the eldest male to the younger.

3. Next after descendents, 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 any 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.

4. In heritage there is a right of representation, by which one succeeds, not from any title in himself, but in the place of, 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 leirs, which is the case of heirs portioners; and succession in stirpes, where the remainder 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 granddaughters 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 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 entitled to a recompense, in so far as the divisions are unequal; at least, where the superiorities yield a constant yearly rent. The principal seat of the family falls to the eldest, with the garden and orchard belonging to it, without recompense 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.

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 seisin goes 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 entitled 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 fort 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, i.e., one who stood infest at his death in lands, though 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 bur- gels, 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, though these are not heritable ex jure naturae: 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, though 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 definition, 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 heirs, 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 exhibited; because they sunk the property of estates, and created a perpetuity of life-rents. 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 seisin, 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 talzie, even without these requisites, is effectual against the heir of the grantor, or against the institute who accepts of it.

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.

13. An heir, who counteracts the directions of the tailzie, 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.

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. 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 superintendencies belonging to the entailed estate; but in all these cases, the price is to be settled in the same manner that the lands or superintendencies 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 conjunct fee. 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 heirs 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 of one of them, he to whose heirs the right is taken, is the only heir; the right of the other resolves into a simple ferment: 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 ferment, the husband, as the persona dignior, is the only heir: The wife's right resolves into a ferment, 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 invetitute, 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 father from granting onerous or rational deeds, he continues to have the full power of telling 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.

13. 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 grantor, 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. 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 heirs (or issue) of a marriage, it is divided equally among the children, if no division be made by the father; for such division 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 families; 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 grantor 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 grantor, 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 fair, 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 persona 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 grantor'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.

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 apparenacy 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 expiring 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 be continued upon a citation of the heir, without waiving 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 fifteen 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.

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 special service, followed by seisin, vests the heir in the right of the special subjects in which the ancestor died intestate.

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 heritance requiring seisin, to the clerk of the shire where he died; and if, after the same is subscribed by the sheriffs... 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 easements 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 de clare confest, from the first words of its recital), commanding his bailie to infest him in the subjects that belonged to his ancestor. These precepts are, no doubt, effectual against the superior who grants them, and 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 twenty years, as a legal entry would have done. Of the same nature is the entry by hasp and staple, commonly used in burgage tenements of houses; by which the bailie, without calling an inquest, cognizance or declares a person heir, upon evidence brought before himself; and, at the same time, infests 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.

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 has right to do. 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 inheritable 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 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 postulating 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 executing 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 inheritable office of profit, which may pass by voluntary conveyance, and consequently is adjudicatable, 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 that estate to which he himself might have succeeded as heir; and it is called praecptio 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 infestation 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: Gestio pro herede, being a vicious passive title founded upon a quasi delict, cannot be objected against the delinquent's heir, if process has not been instituted 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 peremptory 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 entitle 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 compleat 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 vested and seised in the right, and in whose hereditas jacentis 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 conclude that it was legally vested in him; it is therefore provided, 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 corrective 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 fief, and possessed only civilly through the liberenter.

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 poustie, by which is understood a state of health; and it gets that 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 sixty 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 people are met together in the church or churchyard for any public meeting, civil or ecclesiastical, or in the market 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 capitio letti, 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 letto 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 dispensed. Deathbed-deeds granted in consequence of a full or proper obligation in liege poustie, 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 inheritable to make it moveable; but if he should, in liege poustie, exclude his apparent heir, by an irrevocable deed containing reserved faculties, the heir cannot be heard to quarrel the exercise of these faculties on deathbed.

42. In a competition between the creditors of the deceased and of the heir, our law 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.

Tit. 28. Of Succession in Moveables.

In the succession of moveable rights, it is an universal rule, 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 Tit. xxvii. 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 descendents, 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; and hence testaments are called, last or latter wills. Testaments, in their strict acceptation, 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 § 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.

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 assignation, 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 executory may be.

5. Minors, after puberty, can tell without their curators, wives without their husbands, and persons interdicted without their interdictors: but bailiffs cannot tell, except in the cases afterwards set forth, Tit. xxix. 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 relativa, and a certain share to the children, called the legitimate, 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 povstie, even gratuitously, if no fraudulent intention to disappoint the wife or children shall appear, yet cannot impair their shares gratuitously on deathbed; nor can he dispose of his moveables to their prejudice by testament, though it should be made in liege povstie; hence tenants 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 tell, 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 legitimate; the other half is the dead's part, which falls also to the children, if the father has not testified upon it. If he leaves both widow and children, the division is tripartite; the wife takes one third by herself; another falls, as legitimate, 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 legitimate is truly due on a mother's death; yet 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 reliefs, 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 deathbed, affect only the dead's part. Bonds bearing interest, due by the deceased, cannot diminish the reliefs' 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 forisfamiliated, 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 entitled 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.

10. For preserving an equality among all the children, who continue intitled to the legitime, we have adopted the Roman doctrine of collatio honorum; whereby 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 praecipuum to the child, collation is excluded. A child is not bound to collate an inheritable 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 reliefs 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 mult compleat 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 decerniture; this is called the confirmation of a testament-testamentary. In default of an executor named by the deceased, universal dilponees 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 entitles 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 clofed 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 faciens 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 decreed. decerned 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 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 omittis, vel male appretiata, at the suit of any having interest; and if it appears that he has not omitted or undervalued any subject dolos, 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 done shall be presumed, the whole subject of the testament ad omittis vel male appretiata, will be carried to him who confirms it, to the exclusion of the executor in the principal testament.

16. The legitimate and relict's share, because they are rights arising ex lege, operate ipso jure, upon the father's death, in favour of the relict 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 executry 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: 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 death-bed, physicians fees during that period, funeral charges, and the rent of his house, and his servant's 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 introversion, 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 introversion 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 introversion 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 introversion, or custodiae 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 introversion: 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, jointly, they are liable, not pro rata of their several inheritances, but pro virili.

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.

Tit. 29. Of last Heirs and Bastards.

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 fees 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 proximity 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 nullius est, cedit domino Regi.

2. If the lands, to which the King succeeds, beholding 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 decree of declarator; and thereafter he is presented to the superior, by letters of presentation from the King under the quarter-feal, 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 loco, 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 liege pouffe, and of his moveables by any deed inter vivos; yet he is disfabled, 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 fifteen, 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.

Tit. 30. Of Actions.

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 acceptation 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 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 treated of below, Tit. 33. Reduction-improbation is an action, whereby a person who may be hurt or affected by a writing, inflicts 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 defendants 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, 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 reductions of writings are, the want of the requisite solemnities; that the granter 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 meta.

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 null. One is deemed a prior creditor, whose ground of debt existed before the right granted 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 tochers contrasted 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 attract or support the onerous cause of his right, not merely by his own oath, but by some circumstances or adminicules. But where a right is granted to a stranger, the narrative of it expelling 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 entitled 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 sixty 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, abconding, 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. It is provided, 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 novae debita.

14. Actions are divided into rei persecutoriae, and personales. By the first, the pursuer inflicts barely to recover the subject that is his, or the debt due to him; and this includes 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 spuizie, ejection, and intrusion, are penal. An action of spuizie 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 spuizie 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 sick, 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 litigested in the delinquent's lifetime, may be continued against the heir, though the delinquent should die during the dependence. Some actions are rei persecutoriae 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, though 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 petitionary, possessory, and declaratory. Petitionary 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 pointing, of forthcoming, and indeed all personal actions upon contracts or quasi contracts, are petitionary. Possessory actions are those which are founded, either upon possession alone, as spuizies; or upon possession joined with another title, as removings; 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, uti possideas, 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 commonalty, or of controverted marches. Where a declarator of property is conjoined with a process of molestation, the petition alone is competent to the action. Actions on briefes of perambulation, have the same tendency with molestations, viz. the settling of marches between contemnious lands.

20. The action of mails and duties is sometimes petitionary, 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 adjudicator, for an adjudication is a judicial disposition. In the petitionary 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 possessory, he cannot compete with him in the possession, till in a formal process of reduction he shall obtain the possessory'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 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 action 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 endeavored to be revived, is in effect declaratory. In obligations that are extinguishable 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 amissoris, or accident by which the writing was destroyed, as shews 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 admixture in writing, referring to that which is libelled; for no written obligation ought to be raised up barely on the testimony of witnesses. If these admixtures 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 admixtures. 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 he may pay securely to him whose right shall be found preferable. This action is daily pursued by an arrestee, in the case of several arrestments 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 media, any third person who conceives he has a right to it, may, 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.

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 processes. 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 which must transfer. Obligations may be now registered summarily after the creditor's death; which before was not admitted, without a separate process of registration, to which the granter 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. Though the ordinary title in this process be an obligation by the defender to grant transumpts 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 transumpts, and are as effectual as an extract from the register.

28. Actions proceeded ancienly upon briefes 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 briefes, as of inquest, terce, ideotry, 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 briefes. 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, authorising 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, twenty one and six days, for the first and second diets of appearance, must be allowed him for that purpose; and if out of it, sixty and fifteen. Defenders residing in Orkney or Zetland must be cited on forty days. In certain summonses which are privileged, the induciae are shortened: Spuizies and ejections proceed on fifteen days; wakenings wakenings and transfers, being but incidental, on six; see the list of privileged summonses, in act of federate June 29, 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 opprobrium committed during the dependence of a suit by any of the parties, may be tried without a summons, by a summary complaint.

30. Where an action is in part penal, e.g., a removing spuizie, &c., a pursuer who restricts his demand to, and obtains 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 abolished in the criminal trial, for want of evidence, the party injured may bring an action ad civilem effectum, in which he is entitled to refer the libel to the defender's oath.

31. One libel or summons may contain different conclusions on the same ground of right, recissory, 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 ending an action. They are either dilatory, which do not enter into the cause itself, and so can only procure an absolution 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 proceeding, must be offered in limine judicis, and all of them at once. But peremptory defences may be proponed at any time before sentence.

33. A cause, after the parties had litigated it before the judge, was said by the Romans to be litiscontestata. 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.

Tit. 31. Of Probation.

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 § 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 J. 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, Tit. xxi. 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 turnings by a shop-keeper, such books, if they are regularly kept by him, supported by the testimony of a single witness, afford a semplena probatio in his favour, which becomes full evidence by his own oath in supplement. Notorial 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 virtual 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 fears 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; there- fore, 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 petitia, against the pursuer, it is held as extrinsic, and must be proved aliunde. Neither can a defender who in his oath admits the constitution of a debt, get off by adjusting the quality of payment, where the payment ought by its nature to be vouched by written evidence.

6. Oaths of verity are sometimes deferred 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 § 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 federunt, 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 depositing, he shall be held pro confesso; from a presumption 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 deposits 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 defers 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 Tit. xx. 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, i. In payment of any sum above L. 100 Scots, all which must be proved either scripto vel juramento. 2. In all gratuitous promises, though for the smallest trifle. 3. In all contracts, where writing is either essential to their constitution, (see Tit. xxi. 2) or where it is usually exhibited, as in the borrowing of money. And it is a general rule, subject to the restrictions mentioned in the next §, 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, non-custodial legacies, and verbal agreements which contain mutual obligations. And it is received to the highest extent, i. 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 personae, 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 facti does not disqualify a witness. Pupils are inhabile witnesses; being, in the judgment of law, incapable of the impressions of an oath. The testimony of women is seldom admitted, where other witnesses can be had. And in general witnesses otherwise exceptional may, where there is a penury of witnesses arising from the nature or circumstances of the fact, be received cum 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 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 instructed 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 testimonii. 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. protest for reprobator, before the witness is examined; i.e., that he may be afterwards allowed to bring evidence of his enmity, or other incompatibility. Reprobator is com- petent even after sentence, where protestation is duly entered; but in that case, the party insisting must con- sign 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 Or- dinary who pronounces it, is no longer judge in the pro- cess; 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, con- taining 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, circumscribing the term, and excluding him from bringing evidence there- after. Where evidence is brought, if it be upon an act, the Lord Ordinary on the act, after the term for pro- ving is elapsed, declares the proof concluded, and there- upon 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 dili- gence, the import of it may be determined by the Lord Ordinary in the cause.

16. Where facts do not admit a direct proof, presump- tions 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 an- other 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. hominis or judicis. 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 el- ude 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 presump- tions 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 pres- umpto. 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 eluded, not only by direct evidence, but by other conjectures, affording a stronger degree of probability to the contrary. Presumptiones hominis or judicis, are those which arise daily from the circumstances of particu- lar 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 or 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 al- ways limited to the special purposes of equity, for which they were introduced; see an example, Tit. xxx. 3.

Tit. 32. Of Sentences and their Execution.

Property would be most uncertain, if debateable points might, after receiving a definitive judgment, be brought again in question, at the pleasure of either of the parties: Every litigant has therefore affixed the character of final to certain sentences or decrees, which in the Ro- man law are called res judicatae, 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 ob- tained has thereafter recovered evidence sufficient to over- turn it, of which he knew not before.

3. As parties might formerly reclaim against the sen- tences of the session, at any time before extracting the decree, no judgment was final till extract; but now, a sentence of the inner-house, either not reclaimed against within six sederunt-days after its date, or adhered to upon a reclaiming bill, though it cannot receive execution till extract, makes the judgment final as to the court of Sel- sion. And, by an order of the house of Lords, March 24, 1725, no appeal is to be received by them from sen- tences of the Selsion after five years from extracting the sentence; unless the person entitled to such appeal be mi- nor, clothed with a husband, non compos mentis, im- prisoned, 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 sederunt-days after sign- ing such interlocutor. 4. Decrees, in absence of the defender, have not the force of res judicata 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 litiscontestatione: 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 advocation, 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 preferer of the bill shall not, within fourteen days after passing it, expedite the letters, execution may proceed on the sentence. 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.

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 school masters, for their stipends, rents, or salaries, cannot be suspended, but upon production of discharges, or on confignation of the sums charged for. A chargor, 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 chargor, 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 affirms 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 farther 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 rejecting 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. 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.

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 squelor 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 intruments, 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. 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 expense 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 cesso bonorum, i.e., upon their making over to the creditors all their estate, real and personal. This must be insisted for, by way of action, to which all the 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 confederate 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 an affrightment or indemnification to the party injured or his executors, though the crime itself should be extinguished by a pardon. A disposition granted on a cesso bonorum is merely in farther 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 cesso, except in so far as is necessary for his subsistence. Debtors, who are let free on a cesso bonorum, are obliged to wear a habit proper to dyvers or bankrupts. The Lords are prohibited to dispense with this mark of ignominy, unless, in the summons and process of cesso, it be labeled, 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 he chooses to bear the burden of the aliment, rather than release him. The statute authorizing 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 pointing; 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 ejectment are granted of course, ordaining the sheriff to eject him, and to enter the obtainor 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 forty 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 have 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 compromissi.

17. But, on the other part, as submissions are designed for a most favourable purpose, the amicable composition 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.

Tit. 26. Of Crimes.

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 vindicatae publicae, though the party injured should refuse to concur. Smaller offenses, as petty riots, injuries, &c., which do not demand mand 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 it; 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 by an idiot or furious person: But lesser degrees of insanity, 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, do not being incident to that age; but the precise age at which a person becomes capable of doing, 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 pubertatis, 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 by being accessory to a crime committed by another; which last is by civilians styled *ape et confilio*, 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 jocular 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 effect 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 blasphemy, 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 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. An. 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 twelve judges of England, while they are doing their offices; which last article is by the fore-named act 7. An. applied to Scotland, in the case of slaying any judge of the Session or of Justiciary 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, whether against Peers or Commoners, are set forth in a small treatise, published by order of the house of Lords in 1709, joined 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; herit; and the estate which he cannot take, falls to the immediate superior as escheat, ob defectum hereditis, without distinguishing whether the lands hold of the crown, or of a subject. No attainder 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 Meprendre, is the overlooking or concealing of treason. It is inferred by one's bare knowledge of the crime, and not discovering it to a magistrate or other person entitled by his office to take examinations; though he should not in the least degree assist to it. The foresaid act 7 An. 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 lifester 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 leaping 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 twelve, 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 the 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 clasped theftbote (from bole, 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. Deforcement 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, afflicting in the illegal running, landing, or exporting of prohibited or uncustomed goods, or any who shall resist, wound, or main any officer of the revenue in the execution of office, are punishable with death and the confiscation of moveables.

16. Breach of arrestment, (see Tit. xxv. 5.) is a crime of the same nature with deforcement, 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 forstalling 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 flaying salmon in forbidden time, destroying plough-graith in time of tillage, flaying 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 1698, c. 16—1 Geo. I. St. 2. c. 48.

17. Crimes against particular persons may be directed, either against life, limb, liberty, chastity, goods, or reputation. Murder is the willful taking away of a person's life, without a necessary cause. Our law makes no distinction between 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 demembra- tion, 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 affayment 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 Justiciary, but the Session, because it is only intended ad civilium 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 fifteen years; and an arbitrary punishment, if he be under it. A presumptive or statuto-y 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 men 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 hain, home, and socken, to seek or pursue,) is the assaulting or beating of a person in his own house. The punishment of this crime is no where 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 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.

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 compleat 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 any other ground whatever: And if the person prosecuted for this crime shall be denounced for not appearing, his liberent, as well as single escheat, falls upon the denunciation.

23. The crime of wrongful 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 wrongful 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.

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 their 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.

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.

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: Civilitas 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 explicate statute making rape, or the ravishing of women, capital; but it is plainly supposed in act 16 12. 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 later 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 forty-eight 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 floutchief, under which clats may be included forning, or the taking of meat and drink by force, without paying for it, Stouthrief came at last to be committed so audaciously, by bands of men associated together, that it was thought necessary to vest all our freeholders with a power of holding courts upon formers and rievers, and condemning them to death. Nay, all were capitally punished, who, to secure their lands from depredation, paid to the rievers a yearly contribution, which got the name of black mail. An act also passed, commanding to banishment a band of formers, who were originally from Egypt, called Gypsies, 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. Falshood, in a large sense, is the fraudulent imitation or suppression of truth, to the damage of another. The latest statute against this crime, punishes it by confiscation of moveables. That particular species of falshood, 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 civilium effectum. When it is pleaded as an exception, our practice, to discourage affected delays, obliges the defender, who moves it, to confine L. 40 Scots; which he forfeits, if his plea shall appear calumniouss.

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 falshood on oath, really constitutes the crimen falsi; for he who is guilty of it does, in the most solemn manner, substitute falshood in the place of truth. To constitute this crime, the violation of truth must be deliberately intended by the wearer; 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 falshood. 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 farther 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 numerical right, granted by the proprietor to different donees. 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 usura, 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 wadset. 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 twit- ting 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 confidents, 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 cognizance of slander is proper to the commissioners, who, as the judices Christi anitatis, 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 merit 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 Justiciary, 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 doing, 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 12000 merks Scots for a Noblenian, 6000 for a landed gentleman, 2000 for any 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 to every such prisoner, to apply to the criminal judge, that his trial may be brought on. The judge must, within twenty-four hours after such application, issue letters directed to messengers, for intimating to the prosecutor to fix a diet for the prisoner's trial, within sixty days after the intimation, under the pain of wrongful imprisonment: And if the prosecutor does not inflict 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 crimes, it is usual for a justice of the peace, sheriff, or other judge, to take a pre-cognition 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 forty 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 silk 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 law 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 fifteen 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 labelled 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 label upon the precise circumstances of accession that may appear in proof, libels against accessories are sufficient, if they mentioned, 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 Justiciary, 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, infanitia 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 abscission of a necessary witness, the court will, upon a motion made by him, defer the diet pro loco et tempore; after which new letters become also necessary. A defender, who does not appear on the day to which he is cited, is declared fugitive; in consequence of which, his single escat 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 labelled 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 proveable 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 judgment, 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 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 labelled, 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 thirty days; and, if north of it, in less than forty 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 audtores*. 2. Crimes may be extinguished by a remission from the Sovereign. But a remission, though 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 founds 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 medium pane, yet do not against the payment of any pecuniary fine, which is given by statute 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 them, or by his being reconciled to the offender, after receiving the injury. Hence arises the rule, *dissimulazione 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 insisting 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 twenty years; but in particular crimes, the prescription is limited by statute to a shorter time. No person can be prosecuted upon the act against wrongful 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 persecutor, 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 hame-fucken, 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.

LAY

LAWBURROWS, in Scots Law. See Law, Tit xxx. 16.