its most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, of mechanics, as well as the laws of nature and of nations. And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey.

Thus when the Supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes at his own pleasure certain arbitrary laws for its direction; so that the hand shall describe a given space in a given time; to which law as long as the work conforms, so long it continues in perfection, and answers the end of its formation.

If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws; more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again; the method of animal nutrition, digestion, secretion, and all other branches of vital economy—are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great Creator.

This then is the general signification of law, a rule of action dictated by some superior being: and, in those creatures that have neither the power to think nor to will, such laws must be invariably obeyed, so long as the creature itself subsists; for its existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behaviour.

Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue but such as he prescribes to himself: but a state of dependance will inevitably oblige the inferior to take the will of him on whom he depends as the rule of his conduct; not indeed in every particular, but in all those points wherein his dependance consists. This principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependance of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for every thing, it is necessary that he should in all points conform to his Maker's will.

This will of his Maker is called the law of nature. For as God, when he created matter, and ended it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and ended him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purpose of those laws.

Considering the Creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature man, however unjust or severe. But as he is also a Being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice that existed in the nature of things antecedent to any positive precept. These are the eternal immutable laws of good and evil, to which the Creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such, among others, are these principles: That we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian has reduced the whole doctrine of law.

But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be obtained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have relished content in mental indolence, and ignorance its inseparable companion. As therefore the Creator is a being, not only of infinite power and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven, the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly supposed; but has graciously reduced the rule of obedience to this one paternal precept, "that man should pursue his own happiness." This is the foundation of what we call ethics, or natural law*. For the several articles into which it is branched in our systems, amount to no more than demonstrating, that this or that action... action tends to man's real happiness; and therefore very justly concluding, that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it.

This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

But in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason: whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life; by considering, what method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.

This has given manifold occasion for the benign interposition of Divine Providence; which, in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered, we call the revealed or divine law, and they are to be found only in the Holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude, that the knowledge of these truths was attainable by reason in its present corrupted state; since we find, that, until they were revealed, they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system which is framed by ethical writers, and denominated the natural law: because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the affiance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority: but till then they can never be put in any competition together.

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary, for the benefit of society, to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy: for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural, law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex a punishment to it, do not at all increase its moral guilt, or superadd any fresh obligation in fora conscientiae to abstain from its perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.

If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of nature and the law of God. Neither could any other law possibly exist: for a law always supposes some superior who is to make it; and in a state of nature we are all equal, without any other superior but him who is the Author of our being. But man was formed for society; and, as is demonstrated by the writers on this subject, is neither capable of living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called the law of nations: which, as none of these states will acknowledge a superiority in the other, cannot be dictated by either; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements, between these several communities: in the construction also of which compacts we have no other rule to refer to but the law of nature; being the only one to which both communities are equally subject: and therefore the civil law very justly observes, that quod naturalis ratio inter omnes homines confinit, vocatur jus gentium.

To the consideration, then, of the law of nature, Municipal the revealed law, and the law of nations, succeeds or civil law, that of the municipal or civil law; that is, the rule by which particular districts, communities, or nations, are governed; being thus defined by Justinian, "jus civile est quod quique fisci populus confinitur." We call it municipal law, in compliance with common speech; for though, strictly, that expression denotes the particular customs of one single municipium or free town, yet it may with sufficient propriety be applied to any one state or nation which is governed by the same laws and customs.

Municipal law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong." Let us endeavour to explain its several properties, as they arise out of this definition.

And, first, it is a rule: not a transient sudden Its first pro-order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confir- cate the goods of Titius, or to attain him of high treason, does not enter into the idea of a municipal law; for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason; this has permanency, uniformity, and universality, and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not as we see proper, and to judge upon the reasonableness or unreasonableness of the thing advised; whereas our obedience to the law depends not upon our approbation, but upon the Maker's will. Counsel is only matter of persuasion, law matter of injunction; counsel acts only upon the willing, law upon the unwilling also.

It is also called a rule, to distinguish it from a compact or agreement; for a compact is a promise proceeding from us, law is a command directed to us. The language of a compact is, "I will, or will not, do this;" that of a law is, "Thou shalt, or shalt not, do it." It is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is different. In compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act without ourselves determining or promising anything at all. Upon these accounts law is defined to be "a rule."

Municipal law is also "a rule of civil conduct." This distinguishes municipal law from the natural or revealed: the former of which is the rule of moral conduct; and the latter not only the rule of moral conduct, but also of faith. These regard man as a creature; and point out his duty to God, to himself, and to his neighbour, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour, than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more, than that he do contribute, on his part, to the subsistence and peace of the society.

It is likewise "a rule prescribed." Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England and of Scotland. It may be notified vivæ voce, by officers appointed for that purpose; as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. It may, lastly, be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. Yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and conspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people. There is still a more unreasonable method than this, which is called making of laws ex post facto; when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee, that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust. All laws should be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term "prescribed." But when this rule is in the usual manner notified or prescribed, it is then the subject's business to be thoroughly acquainted therewith; for if ignorance, of what he might know, were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity.

But further: Municipal law is "a rule of civil conduct prescribed by the supreme power in a state." For every legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Therefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.

This will naturally lead us into a short inquiry concerning the nature of society and civil government; and the natural inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws.

The only true and natural foundations of society are Civil for the wants and fears of individuals. Not that we can easily believe, with some theoretical writers, that there ever was a time when there was no such thing as society; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted; and besides, it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation 2000 years afterwards; both which were effected by the means of single families. These formed the first society among themselves, which every day extended its limits; and when it grew too large to subsist with convenience in that pastoral state wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent; and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement, of society. And this is what we mean by the original... original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied in the very act of associating together: namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all, it was impossible that protection could be certainly extended to any.

For when society is once formed, government results of course, as necessary to preserve and to keep that society in order. Unless some superior be constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. But as all the members of society are naturally equal, it may be asked, In whose hands are the reins of government to be entrusted? To this the general answer is easy; but the application of it to particular cases has occasioned one half of those mischiefs which are apt to proceed from misguided political zeal. In general, all mankind will agree, that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of him who is emphatically styled the Supreme Being; the three grand requisites, namely, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength or power to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well constituted frame of government.

How the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. It is not our business or intention to enter into any of them. However they began, or by what right forever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summii imperii, or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given or collected from their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found.

The political writers of antiquity will not allow more than three regular forms of government: the first, when the sovereign power is lodged in an aggregate assembly consisting of all the members of a community which is called a democracy; the second, when it is lodged in a council composed of select members, and then it is styled an aristocracy; the last, when it is entrusted in the hands of a single person, and then it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three.

By the sovereign power, as was before observed, is meant the making of laws; for wherever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of the government may put on. For it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases; and all the other powers of the state must obey the legislative power in the execution of their several functions, or else the constitution is at an end.

In a democracy, where the right of making laws resides in the people at large, public virtue or goodness of intention is more likely to be found than either of the other qualities of government. Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. In aristocracies there is more wisdom to be found than in the other forms of government; being composed, or intended to be composed, of the most experienced citizens: but there is less honesty than in a republic, and less strength than in a monarchy. A monarchy is indeed the most powerful of any, all the finesse of government being knit and united together in the hand of the prince; but then there is imminent danger of his employing that strength to improvident or oppressive purposes.

Thus these three species of government have all of them their several perfections and imperfections. Democracies are usually the best calculated to direct the end of a law; aristocracies, to invent the means by which that end shall be obtained; and monarchies, to carry those means into execution. And the ancients, as was observed, had in general no idea of any other permanent form of government but these three: for though Cicero declares himself of opinion, "esse optime constitutum rempublicam, qua ex tribus generibus illis, regali, optimo, et populari, fit modice confusa;" yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim, and one that, if effected, could never be lasting or secure.

But, happily for us of this island, the British constitution has long remained, and we trust will long continue, a standing exception to the truth of this observation. For, as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch that are to be found in the most absolute monarchy: and, as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property; and, thirdly, the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy; as this aggregate body, actuated by different springs and attentive to different interests, composes the British parliament, and has the supreme disposal of every thing, there can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two, each branch being armed with a negative power sufficient to repel any innovation which it shall think inexpedient or dangerous. Here, then, is lodged the sovereignty of the British constitution; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom, or power. If it were lodged in any two of the branches; for instance, in the king and house of lords; our laws might be providently made and well executed, but they might not always have the good of the people in view: if lodged in the king and commons, we should want that circumspection and mediatory caution, which the wisdom of the peers is to afford: if the supreme rights of legislature were lodged in the two houses only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. For if ever it should happen, that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution. The legislature would be changed from that which was originally set up by the general consent and fundamental act of the society: and such a change, however effected, is, according to Mr Locke (who perhaps carries his theory too far), at once an entire dissolution of the bands of government; and the people are thereby reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power.

Having thus cursorily considered the three usual species of government, and our own singular constitution selected and compounded from them all, we proceed to observe, that, as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any state resides, it is the right of that authority to make laws; that is, in the words of our definition, to prescribe the rule of civil action. And this may be discovered from the very end and institution of civil states. For a state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man. If it therefore is to act as one man, it ought to act by one uniform will. But, inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is entrusted; and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be law.

Thus far as to the right of the supreme power to make laws; but farther, it is its duty likewise. For since the respective members are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that its will. But as it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules, for the perpetual information and direction of all persons in all points, whether of positive or negative duty: and this, in order that every man may know what to look upon as his own, what as another's; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest, or indifferent; what degree every man retains of his natural liberty, and what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure the public tranquillity.

From what has been advanced, the truth of the former branch of our definition is (we trust) sufficiently evident; that "municipal law is a rule of civil conduct, prescribed by the supreme power in a state." We proceed now to the latter branch of it; that it is a rule, to prescribe, "commanding what is right, and prohibiting what is wrong."

Now, in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. And when this is once done, it will follow of course, that it is likewise the business of the law, considered as a rule of civil conduct, to enforce these rights, and to restrain or redress these wrongs. It remains therefore only to consider, in what manner the law is said to ascertain the boundaries of right and wrong; and the methods which it takes to command the one and prohibit the other.

For this purpose, every law may be said to consist of several parts: one, declaratory; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down; another, directory; whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs; a third, remedial; whereby a method is pointed out to recover a man's private rights, or redress his private wrongs; to which may be added a fourth, usually termed the sanction or vindicatory branch of the law; whereby it is signified what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty.

With regard to the first of these, the declaratory part of the municipal law; this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator. This doctrine, which before was slightly touched, deserves a more particular explication. Those rights, then, which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when Of Laws when declared by the municipal laws to be inviolable, in general. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. Neither do divine or natural duties (such as, for instance, the worship of God, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land.

The case is the same as to crimes and misdemeanours, that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases acts only, as was before observed, in subordination to the Great Lawgiver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.

But with regard to things in themselves indifferent, the case is entirely altered. Thefe become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. Thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute law has declared all monopolies a public offence; yet that right, and this offence, have no foundation in nature; but are merely created by the law, for the purposes of civil society. And sometimes, where the thing itself has its rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct. Thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion; but who those superiors shall be, and in what circumstances, or to what degrees they shall be obeyed, is the province of human laws to determine. And so, as to injuries or crimes, it must be left to our own legislature to decide, in what cases the seizing another's cattle shall amount to the crime of robbery; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent.

Thus much for the declaratory part of the municipal law; and the directory stands much upon the same footing; for this virtually includes the former, the declaration being usually collected from the direction. The law that says, "Thou shalt not steal," implies a declaration that stealing is a crime. And we have seen, that, in things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or to omit them.

The remedial part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights when wrongfully withheld or invaded. This is what we mean properly, when we speak of the protection of the law. When, for instance, the declaratory part of the law has said, "that the field or inheritance which belonged to Titius's father is vested by his death in Titius," and the directory part has "forbidden any one to enter on another's property without the leave of the owner;" if Gaius after this will presume to take possession of the land, the remedial part of the law will then interpose its office; will make Gaius restore the possession to Titius, and also pay him damages for the invasion.

With regard to the sanction of laws, or the evil that may attend the breach of public duties; it is observed, that human legislators have for the most part chosen to make the sanction of their laws rather vindictory than remuneratory, or to confine rather in punishments than in actual particular rewards: because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards; because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so profuse a bounty: and farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good. For which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are intrusted with the care of putting the laws in execution.

Of all the parts of a law the most effectual is the vindictory. For it is but lost labour to say, "Do this, or do that," unless we also declare, "This shall be the consequence of your non-compliance." We must therefore observe, that the main strength and force of a law consists in the penalty annexed to it. Herein is to be found the principal obligation of human laws.

Legislators and their laws are said to compel and oblige: not that, by any natural violence, they fo constrain a man as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation; but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty: for rewards, in their nature, can only persuade and allure; nothing is compulsory but punishment.

It is true, it hath been holden, and very justly, by the principal of our ethical writers, that human laws are binding upon mens consciences. But if that were the only or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. And, true as this principle is, it must still be understood with some restriction. It holds, we apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is a matter of conscience no longer to withhold or to invade it. So also in regard to natural duties, and such offences as are Of Laws in general, here we are bound in conscience, because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. But in relation to those laws which enjoy only positive duties, and forbid only such things as are not mala in se, but mala prohibita merely, without any intermixture of moral guilt, annexing a penalty to non-compliance; here seems to be conscience no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked thing; if every such law were a snare for the conscience of the subject. But in these cases the alternative is offered to every man; "either abstain from this, or submit to such a penalty:" and his conscience will be clear, whichever side of the alternative he thinks proper to embrace. Thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare, and against every person who possesses a partridge in August. And so too, by other statutes, pecuniary penalties are inflicted for exercising trades without serving an apprenticeship thereto, for erecting cottages without annexing four acres of land to each, for not burying the dead in woollen, for not performing statute-work on the public roads, and for innumerable other positive misdemeanors. Now these prohibitory laws do not make the transgression a moral offence, or sin: the only obligation in conscience is to submit to the penalty, if levied. It must, however, be observed, that we are here speaking of laws that are simply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compensation for the civil inconvenience supposed to arise from the offence. But where disobedience to the law involves in it also any degree of public mischief or private injury, there it falls within our former distinction, and is also an offence against conscience.

We have now gone through the definition laid down of a municipal law; and have shown that it is "a rule—of civil conduct—prescribed—by the supreme power in a state—commanding what is right, and prohibiting what is wrong;" in the explication of which we have endeavored to interweave a few useful principles, concerning the nature of civil government, and the obligation of human laws. Before we conclude this part, it may not be amiss to add a few observations concerning the interpretation of laws.

When any doubt arose upon the construction of the Roman laws, the usage was to state the case to the emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppression. The answers of the emperor were called his referents, and these had in succeeding cases the force of perpetual laws; though they ought to be carefully distinguished, by every rational civilian, from those general constitutions which had only the nature of things for their guide. The emperor Maximinus, as his historian Capitolinus informs us, had once resolved to abolish these referents, and retain only the general edicts: he could not bear that the hasty and crude answers of such princes as Commodus and Caracalla should be reverenced as laws. But Justinian thought otherwise, and he has preserved them all. In like manner the canon laws, or decreal epistles of the popes, are all of them referents in the strictest sense. Contrary to all true forms of reasoning, they argue from particulars to generals.

The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.

1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf, which forbade a layman to lay hands on a priest, was adjudged to extend to him who had hurt a priest with a weapon. Again: Terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited "to the princess Sophia, and the heirs of her body being Protestants, it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words "heirs of her body;" which in a legal sense comprise only certain of her lineal descendants. Lastly, where words are clearly repugnant in two laws, the latter law takes place of the elder: leges posteriores priores contrarias abrogant, is a maxim of universal law, as well as of our own constitutions. And accordingly it was laid down by a law of the twelve tables at Rome, Quod populus postremum jusit, id jus ratum est.

2. If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proem, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. Thus, when the law of England declares murder to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is; and, when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.

3. As to the subject-matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but when we consider that the statute was made to prevent the usurpations of the papal fee, and that the nominations to benefices by the Pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

4. As to the effects and consequence, the rule is, Of Laws when declared by the municipal laws to be inviolable, in general. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. Neither do divine or natural duties (such as, for instance, the worship of God, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land.

The case is the same as to crimes and misdemeanours, that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature, in all these cases acts only, as was before observed, in subordination to the Great Lawgiver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.

But with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. Thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute law has declared all monopolies a public offence; yet that right, and this offence, have no foundation in nature; but are merely created by the law, for the purposes of civil society. And sometimes, where the thing itself has its rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct. Thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion; but who those superiors shall be, and in what circumstances, or to what degrees they shall be obeyed, is the province of human laws to determine. And so, as to injuries or crimes, it must be left to our own legislature to decide, in what cases the seizing another's cattle shall amount to the crime of robbery; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent.

Thus much for the declaratory part of the municipal law; and the directory stands much upon the same footing; for this virtually includes the former, the declaration being usually collected from the direction. The law that says, "Thou shalt not steal," implies a declaration that stealing is a crime. And we have seen, that, in things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or to omit them.

The remedial part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights when wrongfully withheld or invaded. This is what we mean properly, when we speak of the protection of the law. When, for instance, the declaratory part of the law has said, "that the field or inheritance which belonged to Titius's father is vested by his death in Titius," and the directory part has "forbid any one to enter on another's property without the leave of the owner;" if Gaius after this will presume to take possession of the land, the remedial part of the law will then interpose its office; will make Gaius restore the possession to Titius, and also pay him damages for the invasion.

With regard to the sanction of laws, or the evil that may attend the breach of public duties; it is observed, that human legislators have for the most part chosen to make the sanction of their laws rather vindictive than remuneratory, or to consist rather in punishments than in actual particular rewards: Because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards: because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so profuse a bounty: and farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good. For which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are intrusted with the care of putting the laws in execution.

Of all the parts of a law the most effectual is the vindicatory. For it is but lost labour to say, "Do this, or pay this penalty;" whereas we also declare, "This shall be the consequence of your non-compliance." We must therefore observe, that the main strength and force of a law consists in the penalty annexed to it. Herein is to be found the principal obligation of human laws.

Legislators and their laws are said to compel and oblige; not that, by any natural violence, they do constrain a man as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation; but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty; for rewards, in their nature, can only persuade and allure; nothing is compulsory but punishment.

It is true, it hath been holden, and very justly, by the principal of our ethical writers, that human laws are binding upon men's consciences. But if that were the only or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. And, true as this principle is, it must still be understood with some restriction. It holds, we apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is a matter of conscience no longer to withhold or to invade it. So also in regard to natural duties, and such offences as are Of Laws mala in se: here we are bound in conscience, because in general we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. But in relation to those laws which enjoy only positive duties, and forbid only such things as are not mala in se, but mala prohibita merely, without any intermixture of moral guilt, annexing a penalty to non-compliance; here seems to be conscience no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked thing; if every such law were a snare for the conscience of the subject. But in these cases the alternative is offered to every man; "either abstain from this, or submit to such a penalty:" and his conscience will be clear, whichever side of the alternative he thinks proper to embrace. Thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare, and against every person who possesses a partridge in August. And so too, by other statutes, pecuniary penalties are inflicted for exercising trades without serving an apprenticeship thereto; for erecting cottages without annexing four acres of land to each, for not burying the dead in woollen, for not performing statute-work on the public roads, and for innumerable other positive misdemeanors. Now these prohibitory laws do not make the transgression a moral offence, or sin: the only obligation in conscience is to submit to the penalty, if levied. It must, however, be observed, that we are here speaking of laws that are simply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compensation for the civil inconvenience supposed to arise from the offence. But where disobedience to the law involves in it also any degree of public mischief or private injury, there it falls within our former distinction, and is also an offence against conscience.

We have now gone through the definition laid down of a municipal law; and have shown that it is "a rule—of civil conduct—prescribed—by the supreme power in a state—commanding what is right, and prohibiting what is wrong;" in the explication of which we have endeavoured to interweave a few useful principles, concerning the nature of civil governments, and the obligation of human laws. Before we conclude this part, it may not be amiss to add a few observations concerning the interpretation of laws.

When any doubt arose upon the construction of the Roman laws, the usage was to state the case to the emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppression. The answers of the emperor were called his rescripts, and these had in succeeding cases the force of perpetual laws; though they ought to be carefully distinguished, by every rational civilian, from those general constitutions which had only the nature of things for their guide. The emperor Maximinus, as his historian Capitolinus informs us, had once resolved to abolish these rescripts, and retain only the general edicts: he could not bear that the hasty and crude answers of such princes as Commodus and Caracalla should be reverenced as laws. But Justinian thought otherwise, and he has preferred them all. In like manner the canon laws, or decreal epistles of the popes, are all of them rescripts in the strictest sense. Contrary to all true forms of reasoning, they argue from particulars to generals.

The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.

1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf, which forbade a layman to lay hands on a priest, was adjudged to extend to him who had hurt a priest with a weapon. Again: Terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited "to the princess Sophia, and the heirs of her body being Protestants, it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words "heirs of her body;" which in a legal sense comprise only certain of her lineal descendants. Lastly, where words are clearly repugnant in two laws, the latter law takes place of the elder: leges posteriores priores contrarias abrogant, is a maxim of universal law, as well as of our own constitutions. And accordingly it was laid down by a law of the twelve tables at Rome, Quod populus postrerum jus, id jus ratum est.

2. If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proéme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. Thus, when the law of England declares murder to be felony without benefit of clergy, we must refer to the same law of England to learn what the benefit of clergy is; and, when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.

3. As to the subject-matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the Pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

4. As to the effects and consequence, the rule is, Of Laws That where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf, which enacted "that whoever drew blood in the streets should be punished with the utmost severity," was held after long debate not to extend to the surgeon who opened the vein of a person that fell down in the street with a fit.

5. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it, or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the rhetorical treatise inscribed to Herennius. There was a law, That those who in a storm forsook the ship should forfeit all property therein, and the ship and lading should belong entirely to those who stood in it. In a dangerous tempest, all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit which he could never pretend to, who neither stood in the ship upon that account, nor contributed anything to its preservation.

From this method of interpreting laws by the reason of them, arises what we call equity: which is thus defined by Grotius, "the correction of that, wherein the law (by reason of its universality) is deficient." For since in laws all cases cannot be foreseen or expressed, it is necessary, that, when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases which, according to Grotius, "lex non exaequabit definit, sed arbitrio boni viri permititur."

Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far; lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion: as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.

Having thus considered the nature of laws in general, we shall proceed to give a view of the particular two following parts of our own country; 1. Of England; 2. Of Scotland. The English law, however, being too extensive to admit of detail in a body, we can only here give such a sketch of it as may be sufficient to show the connection of its parts; but the principal of these parts themselves are explained at large, under their proper names, in the general alphabet.—A contrary method is followed with regard to the law of Scotland. This being less extensive, is given in a body, with all its parts not only in regular connection, but sufficiently explained; these parts, again, not being explained in the order of the alphabet, but marked with numerical references to their explanations in the system.

PART II. THE LAW OF ENGLAND.

INTRODUCTION.

The municipal law of England, or the rule of civil conduct prescribed to the inhabitants of that kingdom, may with sufficient propriety be divided into two kinds: the lex non scripta, the unwritten or common law; and the lex scripta, the written or statute law.

The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom, and likewise these particular laws that are by custom observed only in certain courts and jurisdictions.

In calling these parts of the law leges non scriptae, we would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true indeed, that in the profound ignorance of letters which formerly overspread the whole western world, all laws were entirely traditional; for this plain reason, that the nations among which they prevailed had but little idea of writing. Thus the British as well as the Gallic druids committed all their laws as well as learning to memory; and it is said of the primitive Saxons here, as well as their brethren on the continent, that leges sola memoria et usu retinebant. But, with us at present, the monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. However, we therefore style these parts of our law leges non scriptae, because their original institution and authority are not set down in writing, as acts of parliament are; but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom; in like manner as Aulus Gellius defines the jus non scriptum to be that which is tacito et illiterato hominum consensu et moribus expressum.

Our ancient lawyers, and particularly Fortescue, insist with abundance of warmth, that these customs are as old as the primitive Britons, and continued down through the several mutations of government and inhabitants. habitants, to the present time, unchanged and unadulterated. This may be the case as to some. But in general, as Mr Selden in his notes observes, this after- tion must be understood with many grains of allowance; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another; though doubtless, by the intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they must have insensibly introduced and incorporated many of their own customs with those that were before established; thereby, in all probability, improving the texture and wisdom of the whole, by the accumulated wisdom of diverse particular countries. Our laws, faith lord Bacon, are mixed as our language; and as our language is so much the richer, the laws are the more complete.

And indeed our antiquarians and first historians do all positively assure us, that our body of laws is of this compounded nature. For they tell us, that in the time of Alfred the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile his dome-book, or liber judicialis, for the general use of the whole kingdom. This book is said to have been extant so late as the reign of Edward IV, but is now unfortunately lost. It contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemeanors, and the forms of judicial proceedings. Thus much may at least be collected from that injunction to observe it, which we find in the laws of king Edward the elder, the son of Alfred. Omnibus qui reipublica praefunt etiam atque etiam mandato, ut omnibus aquos fo praebeant ju- diices, perinde ac in judiciis libri scriptum habetur: nec quidem formidant quis jus commune audacter liberique dicant.

But the irruption and establishment of the Danes in England, which followed soon after, introduced new customs, and caused this code of Alfred in many provinces to fall into disuse, or at least to be mixed and debased with other laws of a coarser alloy. So that, about the beginning of the 11th century there were three principal systems of laws prevailing in different districts. 1. The Mercian Law, or Mercian laws, which were observed in many of the inland counties, and those bordering on the principality of Wales, the retreat of the ancient Britons; and therefore very probably intermixed with the British or Druidical customs. 2. The West Saxon Law, or laws of the West Saxons, which obtained in the counties to the south and west of the island, from Kent to Devonshire. These were probably much the same with the laws of Alfred above-mentioned, being the municipal law of the far most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence. 3. The Dane Law, or Danish law, the very name of which speaks its original and composition. This was principally maintained in the rest of the midland counties, and also on the eastern coast, the part most exposed to the visits of that piratical people. As for the very northern provinces, they were at that time under a distinct government.

Out of these three laws, Roger Hoveden and Ralphus Cestrensis informs us, king Edward the confessor extracted one uniform law, or digest of laws, to be observed throughout the whole kingdom; though Hoveden and the author of an old manuscript chronicle assure us likewise, that this work was projected and begun by his grandfather king Edgar. And indeed a general digest of the same nature has been constantly found expedient, and therefore put in practice by other great nations, which were formed from an assemblage of little provinces, governed by peculiar customs. As in Portugal, under king Edward, about the beginning of the 15th century. In Spain, under Alonzo X. who about the year 1250 executed the plan of his father St Ferdinand, and collected all the provincial customs into one uniform law, in the celebrated code entitled las partidas. And in Sweden, about the same era, a universal body of common law was compiled out of the particular customs established by the lagman of every province, and entitled the land's lagh, being analogous to the common law of England.

Both these undertakings, of king Edgar and Edward the Confessor, seem to have been no more than a new edition, or fresh promulgation, of Alfred's code or dome-book, with such additions and improvements as the experience of a century and an half had suggested. For Alfred is generally styled by the same historians the legum Anglicanarum conditor, as Edward the confessor is the restitutor. These, however, are the laws which our histories so often mention under the name of the laws of Edward the Confessor; which our ancestors struggled so hardly to maintain, under the first princes of the Norman line; and which subsequent princes so frequently promised to keep and to restore, as the most popular act they could do, when pressed by foreign emergencies or domestic discontents. These are the laws, that so vigorously withstood the repeated attacks of the civil law; which established in the 12th century a new Roman empire over the most of the states on the continent: states that have lost, and perhaps upon that account, their political liberties; while the free constitution of England, perhaps upon the same account, has been rather improved than debased. These, in short, are the laws which gave rise and origin to that collection of maxims and customs which is now known by the name of the common law. A name either given to it, in contradiction to other laws, as the statute law, the civil law, the law merchant, and the like; or, more probably, as a law common to all the realm, the jus commune or folcright, mentioned by king Edward the Elder, after the abolition of the several provincial customs and particular laws before mentioned.

But though this is the most likely foundation of this collection of maxims and customs; yet the maxims and customs, so collected, are of higher antiquity than memory or history can reach: nothing being more difficult than to ascertain the precise beginning and first spring of an ancient and long established custom. Whence it is, that in our law the goodness of a custom depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This is that gives it its weight and authority; and of this nature are the maxims and customs which compose the common law, or lex non scripta, of this kingdom.

This unwritten, or common law, is properly distinguishable into three kinds: 1. General customs; which are the universal rule of the whole kingdom, and and form the common law in its stricter and more usual signification. 2. Particular customs; which for the most part affect only the inhabitants of particular districts. 3. Certain particular laws; which by custom are adopted and used by some particular courts, of pretty general and extensive jurisdiction.

1. As to general customs, or the common law properly so called; this is that law, by which proceedings and determinations in the king's ordinary courts of justice are guided and directed. This, for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property; the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment, and an infinite number of minute particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for example, that there shall be four superior courts of record, the chancery, the king's bench, the common pleas, and the exchequer;—that the eldest son alone is heir to his ancestor;—that property may be acquired and transferred by writing;—that a deed is of no validity unless sealed and delivered;—that wills shall be construed more favourably, and deeds more strictly;—that money lent upon bond is recoverable by action of debt;—that breaking the public peace is an offence, and punishable by fine and imprisonment:—all these are doctrines that are not set down in any written statute or ordinance; but depend merely upon immemorial usage, that is, upon common law, for their support.

Some have divided the common law into two principal grounds or foundations: 1. Established customs; such as that, where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest: and, 2. Established rules and maxims; as, "that the king can do no wrong, that no man shall be bound to accuse himself," and the like. But these seem to be one and the same thing. For the authority of these maxims rests entirely upon general reception and usage; and the only method of proving that this or that maxim is a rule of the common law, is by showing that it hath been always the custom to observe it.

But here a very natural, and very material, question arises: How are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, By the judges in the several courts of justice. They are the depository of the laws; the living oracles who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study; from the vigilant annorum lucubrationes, which Fortescue mentions; and from being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law. The judgment itself, and all the proceedings previous thereto, are carefully registered and preserved under the name of records, in public repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance. And therefore, even so early as the conquest, we find the præteritum memoria eventorum reckoned up as one of the chief qualifications of those who were held to be legibus patriae optimae instituti. For it is an established rule, To abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law. But, even in such cases, the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. And hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded. And it hath been an ancient observation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.

The doctrine of the law then is this: That precedents and rules must be followed, unless flatly absurd or unjust; for though their reason be not obvious at first view, yet we owe such a deference to former times, as not to suppose they acted wholly without consideration. To illustrate this doctrine by examples. It has been determined, time out of mind, that a brother of the half blood shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the king, or other superior lord. Now this is a positive law, fixed and established by custom; which custom is evidenced by judicial decisions; and therefore can never be departed from by any modern judge without a breach of his oath and the law. For herein there is nothing repugnant to natural justice; though the artificial reason of it, drawn from the feudal law, may not be quite obvious to every body. And therefore, on account of a supposed hardship upon the half brother, a modern judge might wish with it had been otherwise settled; yet it is not in his power to alter it. But if any court were now to determine, that an elder brother of the half blood might enter upon and seize any land... lands that were purchased by his younger brother, no subsequent judges would scruple to declare that such prior determination was unjust, was unreasonable, and therefore was not law. So that the law, and the opinion of the judge, are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law. Upon the whole, however, we may take it as a general rule, "That the decisions of courts of justice are the evidence of what is common law;" in the same manner as in the civil law, what the emperor had once determined was to serve for a guide for the future.

The decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyer's library. These reports are histories of the several cases, with a short summary of the proceedings, which are preserved at large in the record; the arguments on both sides, and the reasons the court gave for its judgment; taken down in short notes by persons present at the determination. And these serve as indexes to, and also to explain, the records; which always, in matters of consequence and nicety, the judges direct to be searched. The reports are extant in a regular series from the reign of king Edward II. inclusive; and from his time to that of Henry VIII. were taken by the prothonotaries, or chief scribes of the court, at the expense of the crown, and published annually, whence they are known under the denomination of the yearbooks. And it is much to be wished that this beneficial custom had, under proper regulations, been continued to this day; for though king James I. at the instance of lord Bacon, appointed two reporters, with a handsome stipend, for this purpose; yet that wise institution was soon neglected, and from the reign of Henry VIII. to the present time this task has been executed by many private and contemporary hands; who sometimes through haste and inaccuracy, sometimes through mistake and want of skill, have published very crude and imperfect (perhaps contradictory) accounts of one and the same determination. Some of the most valuable of the ancient reports are those published by lord chief justice Coke; a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. However, his writings are so highly esteemed, that they are generally cited without the author's name (A).

Besides these reporters, there are also other authors, to whom great veneration and respect are paid by the students of the common law. Such are Glanvil and Bracton, Britton and Fleta, Littleton and Fitzherbert, with some others of ancient date, whose treatises are cited as authority; and are evidence that cases have formerly happened in which such and such points were determined, which are now become settled and first principles. One of the last of these methodical writers in point of time, whose works are of any intrinsic authority in the courts of justice, and do not entirely depend on the strength of their quotations from older authors, is the same learned judge we have just mentioned, Sir Edward Coke; who hath written four volumes of Institutes, as he is pleased to call them, tho' they have little of the institutional method to warrant such a title. The first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by judge Littleton in the reign of Edward IV. This comment is a rich mine of valuable common-law learning, collected and heaped together from the ancient reports and year-books, but greatly defective in method (a). The second volume is a comment upon many old acts of parliament, without any systematical order; the third a more methodical treatise of the pleas of the crown; and the fourth an account of the several species of courts (c).

And thus much for the first ground and chief cornerstone of the laws of England; which is general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decisions are preserved among the public records, explained in the reports, and digested for general use in the authoritative writings of the venerable sages of the law.

The Roman law, as practised in the times of its liberty, paid also a great regard to custom; but not so much as our law: it only then adopting it when the written law was deficient. Though the reasons alleged in the digest will fully justify our practice in making it of equal authority with, when it is not contradicted by, the written law. "For since (says Julianus) the written law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people have approved without writing ought also to bind every body. For where is the difference, whether the people declare their assent to a law by suffrage, or by a uniform course of acting accordingly?" Thus did they reason while Rome had some remains of her freedom; but, when the imperial tyranny came to be fully established, the civil laws speak a very different language. Quid principis placuit legis habet vigorem, cum populus ei et in eum omne suum imperium et potestatem conferat, says Ulpian. Imperator solus et conditor et interpretis legis existimatur, says the code. And again, Sacrilegii infestae gl referentis principis obvani. And indeed it is one of the characteristic marks of British liberty, that the common law depends

(A) His reports, for instance, are styled "the reports;" and in quoting them we usually say, 1 or 2 Rep. not 1 or 2 Coke's Rep. as in citing other authors. The reports of judge Croke are also cited in a peculiar manner, by the name of those princes in whose reigns the cases reported in his three volumes were determined; viz. queen Elizabeth, king James, and king Charles I.; as well as by the number of each volume. For sometimes we call them 1, 2, and 3 Cro.; but more commonly Cro. Eliz., Cro. Jac. and Cro. Car.

(b) It is usually cited either by the name of Co. Litt. or as 1 Inst.

(c) These are cited as 2, 3, or 4 Inst. without any author's name. An honorary distinction, which, we observed, is paid to the works of no other writer; the generality of reports and other tracts being quoted in the name of the compiler, as 2 Ventris, 4 Leonard, 1 Siderfin, and the like. depends upon custom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people.

II. The second branch of the unwritten laws of England are particular customs, or laws which affect only the inhabitants of particular districts.

These particular customs, or some of them, are without doubt the remains of that multitude of local customs before-mentioned, out of which the common law, as it now stands, was collected at first by king Alfred, and afterwards by king Edgar and Edward the confessor; each district mutually sacrificing some of its own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. But, for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradiction to the rest of the nation at large; which privilege is confirmed to them by several acts of parliament.

Such is the custom of gavelkind in Kent and some other parts of the kingdom (though perhaps it was also general till the Norman conquest); which ordains, among other things, that not the eldest son only of the father shall succeed to his inheritance, but all the sons alike; and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estate, without any ejectment to the lord.—Such is the custom that prevails in divers ancient boroughs, and therefore called borough-englih, that the youngest son shall inherit the estate, in preference to all his elder brothers.—Such is the custom in other boroughs, that a widow shall be entitled, for her dower, to all her husband's lands; whereas at the common law she shall be endowed of one third part only.—Such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold tenants that hold of the said manors.—Such likewise is the custom of holding divers inferior courts, with power of trying causes, in cities and trading towns; the right of holding which, when no royal grant can be shown, depends entirely upon immemorial and established usage.—Such, lastly, are many particular customs within the city of London, with regard to trade, apprentices, widows, orphans, and a variety of other matters. All these are contrary to the general law of the land, and are good only by special usage; though the customs of London are also confirmed by act of parliament.

To this head may most properly be referred a particular system of customs used only among one set of the king's subjects, called the custom of merchants, or lex mercatoria; which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it; being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions; for it is a maxim of law, that cuiilibet in sua arte credendum est.

The rules relating to particular customs regard either the proof of their existence; their legality when proved; or their usual method of allowance. And first we will consider the rules of proof.

As to gavelkind, and borough-englih, the law takes particular notice of them; and there is no occasion to prove, that such customs actually exist, but only that the lands in question are subject thereto. All other private customs must be particularly pleaded; and as well the existence of such customs must be shown, as that the thing in dispute is within the custom alleged. The trial in both cases (both to show the existence of the custom, as, "that in the manor of Dale lands shall descend only to the heirs male, and never to the heirs female;" and also to show "that the lands in question are within that manor") is by a jury of 12 men, and not by the judges; except the same particular custom has been before tried, determined, and recorded, in the same court.

The customs of London differ from all others in point of trial: for if the existence of the custom be brought in question, it shall not be tried by a jury, but by certificate from the lord mayor and aldermen by the mouth of their recorder; unless it be such a custom as the corporation is itself interested in, as a right of taking toll, &c., for then the law permits them not to certify on their own behalf.

When a custom is actually proved to exist, the next inquiry is into the legality of it; for if it is not a good custom, it ought to be no longer used. Malus usus abolendus est, is an established maxim of the law. To make a particular custom good, the following are necessary requisites.

1. That it have been used so long, that the memory of man runneth not to the contrary. So that, if any one can show the beginning of it, it is no good custom. For which reason, no custom can prevail against an express act of parliament; since the statute itself is a proof of a time when such a custom did not exist.

2. It must have been continued. Any interruption would cause a temporary ceasing: the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. But this must be understood with regard to an interruption of the right; for an interruption of the possession only, for 10 or 20 years, will not destroy the custom. As if the inhabitants of a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed though they do not use it for 10 years; it only becomes more difficult to prove: but if the right be any how discontinued for a day, the custom is quite at an end.

3. It must have been peaceable, and acquiesced in; not subject to contention and dispute. For as customs owe their original to common consent, their being immemorially disputed, either at law or otherwise, is a proof that such consent was wanting.

4. Customs must be reasonable; or rather, taken negatively, they must not be unreasonable. Which is not always, as Sir Edward Coke says, to be understood of every unlearned man's reason; but of artificial and legal reason, warranted by authority of law. Upon which account a custom may be good, though the particular reason of it cannot be assigned; for it sufficeth, if no good legal reason can be assigned against it. Thus a custom in a parish, that no man shall put his beasts into the common till the third of October, would be good; and yet it would be hard to show the reason why that day in particular is fixed upon, rather than the day before or after. But a custom, that no cattle shall shall be put in till the lord of the manor has first put in his, is unreasonable, and therefore bad; for peradventure the lord will never put in his; and then the tenants will lose all their profits.

5. Customs ought to be certain. A custom, that lands shall descend to the most worthy of the owner's blood, is void; for how shall this worth be determined? but a custom to descend to the next male of the blood exclusive of females, is certain, and therefore good. A custom to pay two pence an acre in lieu of tithes, is good; but to pay sometimes two pence and sometimes three pence, as the occupier of the land pleases, is bad for its uncertainty. Yet a custom, to pay a year's improved value for a fine on a copyhold estate, is good; though the value is a thing uncertain; for the value may at any time be ascertained; and the maxim of law is, *Id certum est, quod certum reddi posset*.

6. Customs, though established by consent, must be (when established) compulsory; and not left to the option of every man, whether he will use them or no. Therefore a custom, that all the inhabitants shall be rated toward the maintenance of a bridge, will be good; but a custom, that every man is to contribute thereto at his own pleasure, is idle and absurd, and indeed no custom at all.

7. Lastly, customs must be consistent with each other. One custom cannot be set up in opposition to another. For if both are really customs, then both are of equal antiquity, and both established by mutual consent: which to say of contradictory customs, is absurd. Therefore, if one man prescribes that by custom he has a right to have windows looking into another's garden; the other cannot claim a right by custom to stop up or obstruct those windows; for these two contradictory customs cannot both be good, nor both stand together. He ought rather to deny the existence of the former custom.

Next, as to the allowance of special customs. Customs, in derogation of the common law, must be construed strictly. Thus, by the custom of gavelkind, an infant of 15 years may by one species of conveyance (called a deed of jeoffment) convey away his lands in fee simple, or for ever. Yet this custom does not empower him to use any other conveyance, or even to lease them for seven years; for the custom must be strictly pursued. And, moreover, all special customs must submit to the king's prerogative. Therefore, if the king purchases lands of the nature of gavelkind, where all the sons inherit equally; yet, upon the king's demise, his eldest son shall succeed to those lands alone. And thus much for the second part of the *leges non scriptae*, or those particular customs which affect particular persons or districts only.

III. The third branch of them are those peculiar laws which by custom are adopted and used only in certain peculiar courts and jurisdictions. And by these are understood the civil and canon laws.

It may seem a little improper, at first view, to rank these laws under the head of *leges non scriptae*, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their institutions; their councils, decrees, and decrets; and enforced by an immense number of expositions, decisions, and treaties of the learned in both branches of the law. But this is done after the example of Sir Matthew Hale, because it is most plain, that it is not on account of their being written laws, that either the canon law, or the civil law, have any obligation within this kingdom: neither do their force and efficacy depend upon their own intrinsic authority; which is the case of our written laws or acts of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors; were digested by Justinian, or declared to be authentic by Gregory. These considerations give them no authority here: for the legislature of England doth not, nor ever did, recognize any foreign power, as superior or equal to it in this kingdom; or as having the right to give law to any the meanest of its subjects. But all the strength that either the papal or imperial laws have obtained in this realm (or indeed in any other kingdom in Europe) is only because they have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts; and then they form a branch of the *leges non scriptae*, or customary law: or else, because they are in some other cases introduced by consent of parliament, and then they owe their validity to the *leges scriptae*, or statute law. This is expressly declared in those remarkable words of the statute 25 Hen. VIII. c. 21, addressed to the king's royal majesty.—"This your grace's realm, recognizing no superior under God but only your grace, hath been and is free from subjection to any man's laws, but only to such as have been devised, made, and ordained within this realm for the wealth of the same; or to such other as, by sufferance of your grace and your progenitors, the people of this your realm have taken at their free liberty, by their own consent, to be used among them; and have bound themselves by long use and custom to the observance of the same: not as to the observance of the laws of any foreign prince, potentate, or prelate; but as to the customed and ancient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and custom; and none otherwise."

1. By the civil law, absolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprised in the Institutes, the code, and the digest of the emperor Justinian, and the novel constitutions of himself and some of his successors; of which it may not be amiss to give a short and general account.

The Roman law (founded first upon the regal constitutions of their ancient kings, next upon the 12 tables of the decemviri, then upon the laws or statutes enacted by the senate or people, the edicts of the praetor, and the *responsa prudentium* or opinions of learned lawyers, and lastly upon the imperial decrees or constitutions of successive emperors) had grown to a great bulk, or, as Livy expresses it, *tam immensus aliarum super alias acervatrum legum cumulus*, that they were computed to be many camels load by an author who preceded Justinian. This was in part remedied by the collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodosius the younger, by whose orders a code was compiled, A.D. 438, being a methodical collection of all the imperial constitutions then in force: which Theodosian code was the only book of civil law received as authentic in the western part of Europe, till Law of many centuries after; and to this it is probable that England, the Franks and Goths might frequently pay some regard, in framing legal constitutions for their newly erected kingdoms. For Justinian commanded only in the eastern remains of the empire; and it was under his auspices, that the present body of civil law was compiled and finished by Tribonian and other lawyers, about the year 533.

This consists of, 1. The Institutes; which contain the elements or first principles of the Roman law, in four books. 2. The Digests or Pandects, in 50 books; containing the opinions and writings of eminent lawyers, digested in a systematical method. 3. A new code, or collection of imperial constitutions; the lapse of a whole century having rendered the former code of Theodosius imperfect. 4. The Novels, or new constitutions, posterior in time to the other books, and amounting to a supplement to the code; containing new decrees of successive emperors, as new questions happened to arise. These form the body of Roman law, or corpus juris civilis, as published about the time of Justinian: which, however, fell soon into neglect and oblivion, till about the year 1130, when a copy of the Digests was found at Amalfi in Italy; which accident, concurring with the policy of the Roman ecclesiastics, suddenly gave new vogue and authority to the civil law, introduced it into several nations, and occasioned that mighty inundation of voluminous comments, with which this system of law, more than any other, is now loaded.

2. The canon law is a body of Roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction over. This is compiled from the opinions of the ancient Latin fathers, the decrees of general councils, the decretal epistles and bulls of the holy see. All which lay in the same disorder and confusion as the Roman civil law: till, about the year 1191, one Gratian an Italian monk, animated by the discovery of Justinian's pandects, reduced the ecclesiastical constitutions also into some method, in three books; which he entitled Concordia discordantium canonum, but which are generally known by the name of Decretum Gratiani. These reached as low as the time of Pope Alexander III. The subsequent papal decrees, to the pontificate of Gregory IX., were published in much the same method under the auspices of that pope, about the year 1230, in five books; entitled, Decretalia Gregorii noni. A sixth book was added by Boniface VIII. about the year 1298, which is called Sextus Decretalium. The Clementine constitutions, or decrees of Clement V., were in like manner authenticated in 1317 by his successor John XXII.; who also published 20 constitutions of his own, called Extravagantes Joannis; all which in some measure answer to the novels of the civil law. To these have been since added some decrees of later popes in five books, called Extravagantes Communes. And all these together, Gratian's decree, Gregory's decrets, the sixth decretal, the Clementine constitutions, and the Extravagants of John and his successors, form the corpus juris canonici, or body of the Roman canon law.

Besides these pontifical collections, which during the times of popery were received as authentic in this island, as well as in other parts of Christendom, there is also a kind of national canon law, composed of legating and provincial constitutions, and adapted only to the exigencies of this church and kingdom. The legating constitutions were ecclesiastical laws, enacted in national synods, held under the cardinals Otho and Othobon, legates from Pope Gregory IX., and Pope Clement IV., in the reign of King Henry III., about the years 1220 and 1268. The provincial constitutions are principally the decrees of provincial synods, held under divers archbishops of Canterbury, from Stephen Langton in the reign of Henry III., to Henry Chichele in the reign of Henry V.; and adopted also by the province of York in the reign of Henry VI. At the dawn of the reformation, in the reign of King Henry VIII., it was enacted in parliament, that a review should be had of the canon law; and till such review should be made, all canons, constitutions, ordinances and synodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, should still be used and executed. And, as no such review has yet been perfected, upon this statute now depends the authority of the canon law in England.

As for the canons enacted by the clergy under James I. in the year 1603, and never confirmed in parliament, it has been solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the ancient canon law, but are introductory of new regulations, they do not bind the laity, whatever regard the clergy may think proper to pay them.

There are four species of courts, in which the civil and canon laws are permitted under different restrictions to be used. 1. The courts of the archbishops and bishops, and their derivative officers; usually called courts Christian, (curiae Christianitatis), or the ecclesiastical courts. 2. The military courts. 3. The courts of admiralty. 4. The courts of the two universities. In all, their reception in general, and the different degrees of that reception, are grounded entirely upon custom; corroborated in the latter instance by act of parliament, ratifying those charters which confirm the customary law of the universities. The more minute consideration of them will fall under their proper articles. It will suffice at present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them.

1. And first, the courts of common law have the superintendency over these courts; to keep them within their jurisdictions; to determine wherein they exceed them; to restrain and prohibit such excess; and (in case of contumacy) to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal.

2. The common law has referred to itself the exposition of all such acts of parliament, as concern either the extent of these courts, or the matters depending before them. And therefore, if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king's courts at Westminster will grant prohibitions to restrain and control them.

3. An appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised... exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinsic authority of their own.—And, from these three strong marks and ensigns of superiority, it appears beyond a doubt, that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate and *lexes sub graviori lege*; and that thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called the king's ecclesiastical, the king's military, the king's maritime, or the king's academical, laws.

Let us next proceed to the *lexes scriptae*, the written laws of the kingdom; which are statutes, acts, or edicts, made by the king's majesty, by and with the advice of the lords spiritual and temporal and commons in parliament assembled. The oldest of these now extant, and printed in our statute books, is the famous magna charta, as confirmed in parliament 9 Hen. III., though doubtless there were many acts before that time, the records of which are now lost, and the determinations of them perhaps at present currently received for the maxims of the old common law.

The manner of making these statutes being explained under the articles BILL AND PARLIAMENT, we shall here only take notice of the different kinds of statutes, and of some general rules with regard to their construction (p.).

First, as to their several kinds, Statutes are either general or special, public or private. A general or public act is an universal rule, which regards the whole community; and of this the courts of law are bound to take notice judicially and *ex officio*, without the statute being particularly pleaded, or formerly set forth, by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons and private concerns; such as the Romans entitled *fereus decreta*, in contradistinction to the *senatus consultum*, which regarded the whole community; and of these the judges are not bound to take notice, unless they be formally shewn and pleaded. Thus, to shew the distinction, the statute 13 Eliz. c. 10, to prevent spiritual persons from making leases for longer terms than 21 years or three lives, is a public act; it being a rule prescribed to the whole body of spiritual persons in the nation; but an act to enable the bishop of Chester to make a lease to A. B. for 60 years, is an exception to this rule; it concerns only the parties and the bishop's successor, and is therefore a private act.

Statutes also are either declaratory of the common law, or remedial of some defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, *in perpetuum rei sefiitum*, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the statute of treasons, 25 Edw. III. cap. 2, doth not make any new species of treasons; but only, for the benefit of the subject, declares and enumerates those several kinds of offence which before were treason at the common law. Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause whatsoever. And this being done, either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, hath occasioned another subordinate division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason. Clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law; therefore it was thought expedient by statute 5 Eliz. c. 10, to say that this was an enlarging statute. At common law, also, spiritual corporations might leave out their estates for any term of years, till prevented by the statute 13 Eliz., before mentioned; this was therefore a restraining statute.

Secondly, the rules to be observed with regard to the construction of statutes are principally these which follow.

1. There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy; that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and

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(a) The method of citing these acts of parliament is various. Many of the ancient statutes are called after the name of the place where the parliament was held that made them; as the statutes of Merton and Marlborough, of Westminster, Gloucester, and Winchester. Others are denominated entirely from their subject; as the statutes of Wales and Ireland, the *articuli cleris*, and the *prerogativa regis*. Some are distinguished by their initial words, a method of citing very ancient, being used by the Jews, in denominating the books of the pentateuch; by the Christian church, in distinguishing their hymns and divine offices; by the Romanists, in describing their papal bulls; and in short by the whole body of ancient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior sections also; in imitation of all which we still call some of the old statutes by their initial words, as the statute of *Quia emptor*, and that of *Circumcision agatis*. But the most usual method of citing them, especially since the time of Edward II., is by naming the year of the king's reign in which the statute was made, together with the chapter or particular act, according to its numeral order; as, 9 Geo. II. c. 4. For all the acts of one session of parliament taken together make properly but one statute; and therefore, when two sessions have been held in one year, we usually mention stat. 1, or 2. Thus the bill of rights is cited, as 1 W. & M. st. 2, c. 2, signifying that it is the second chapter or act of the second statute or the laws made in the second session of parliament held in the first year of king William and queen Mary. what remedy the parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act, as to suppress the mischief and advance the remedy. Let us instance again in the same refraining statute of 13 Eliz. c. 10. By the common law, ecclesiastical corporations might let as long leases as they thought proper; the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors: the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives or 21 years. Now in the construction of this statute it is held, that leases, tho' for a longer term, if made by a bishop, are not void during the bishop's continuance in his see; or, if made by a dean and chapter, they are not void during the continuance of the dean; for the act was made for the benefit and protection of the successor. The mischief is therefore sufficiently suppressed by vacating them after the determination of the interest of the grantors; but the leases, during their continuance, being not within the mischief, are not within the remedy.

2. A statute, which treats of things or persons of an inferior rank, cannot by any general words be extended to those of a superior. So a statute, treating of "deans, prebendaries, parsons, vicars, and others having spiritual promotion," is held not to extend to bishops, though they have spiritual promotion; deans being the highest persons named, and bishops being of a still higher order.

3. Penal statutes must be construed strictly. Thus Windate's Edw. VI. c. 12. having enacted that those benefit of clergy, the judges conceived that this did not extend to him who should steal but one horse, and therefore procured a new act for that purpose in the following year. And, to come nearer to our own times, by the statute 14 Geo. II. c. 6. stealing sheep or other cattle, was made felony without benefit of clergy. But these general words, "or other cattle," being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. And therefore, in the next sessions, it was found necessary to make another statute, 15 Geo. II. c. 34. extending the former to bulls, cows, oxen, stags, bullocks, heifers, calves, and lambs, by name.

4. Statutes against frauds are to be liberally and beneficially expounded. This may seem a contradiction to the last rule; most statutes against frauds being in their consequences penal. But this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly; but when the statute acts upon the offence, by setting aside the fraudulent transaction, here it is to be construed liberally. Upon this footing the statute of 13 Eliz. c. 5. which voids all gifts of goods, &c. made to defraud creditors and others, was held to extend by the general words to a gift made to defraud the queen of a forfeiture.

5. One part of a statute must be so construed by another, that the whole may (if possible) stand: ut res magis valeat quam pereat. As if land be vested in the king and his heirs by act of parliament, saving the right of A; and A has at that time a lease of it for three years; here A shall hold it for his term of three years, and afterwards it shall go to the king. For this interpretation furnishes matter for every clause of the statute to work and operate upon. But,

6. A saving, totally repugnant to the body of the act, is void. If therefore an act of parliament vests land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of A in the king, saving the right of A; in either of these cases the saving is totally repugnant to the body of the statute, and (if good) would render the statute of no effect or operation; and therefore the saving is void, and the land vests absolutely in the king.

7. Where the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one. And this upon the general principle laid down in the last section, that leges posteriores priores contrarias abrogant. But this is to be understood only when the latter statute is couched in negative terms, or by its matter necessarily implies a negative. As if a former act says, that a juror upon such a trial shall have twenty pounds a-year, and a new statute comes and says he shall have twenty merks; here the latter statute, though it does not express, yet necessarily implies, a negative, and virtually repeals the former. For if twenty merks be made qualification sufficient, the former statute which requires twenty pounds is at an end. But if both the acts be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence is indictable at the quarter-sessions, and a later law makes the same offence indictable at the assizes; here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either: unless the new statute subjoins express negative words; as, that the offence shall be indictable at the assizes, and not elsewhere.

8. If a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. So when the statutes of 26 and 35 Hen. VIII. declaring the king to be the supreme head of the church, were repealed by a statute 1 and 2 Philip and Mary, and this latter statute was afterwards repealed by an act of 1 Eliz. there needed not any express words of revival in queen Elizabeth's statute, but these acts of king Henry were impliedly and virtually revived.

9. Acts of parliament derogatory from the power of subsequent parliaments bind not. So the statute 11 Hen. VII. c. 1. which directs, that no person for afflicting a king de facto shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder. Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been if its ordinances could bind the present parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses, which endeavour to tie up the hands of succeeding legislatures. gislatures. "When you repeal the law itself (says he), you at the same time repeal the prohibitory clause which guards against such repeal."

10. Lastly, acts of parliament that are impossible to be performed are of no validity; and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are with regard to those collateral consequences void. We lay down the rule with these restrictions; though we know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, we know of no power that can control it: and the examples usually alleged in support of this sense of the rule do none of them prove that where the main object of a statute is unreasonable the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. But where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it. Thus if an act of parliament gives a man power to try all causes that arise within his manor of Dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel. But, if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words as leave no doubt whether it was the intent of the legislature or not.

There are the several grounds of the laws of England: over and above which, equity is also frequently called in to assist, to moderate, and to explain them. What equity is, and how impossible in its very essence to be reduced to stated rules, hath been shewn above. It may be sufficient, therefore, to add in this place, that, besides the liberality of sentiment with which our common-law judges interpret acts of parliament, and such rules of the unwritten law as are not of a positive kind, there are also courts of equity established for the benefit of the subject, to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law. This is the business of the courts of equity, which however are only conversant in matters of property. For the freedom of our constitution will not permit, that in criminal cases a power should be lodged in any judge to confine the law otherwise than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the law assigns, but he may suffer less. The laws cannot be strained by partiality to inflict a penalty beyond what the letter will warrant; but, in cases where the letter induces any apparent hardship, the crown has the power to pardon.

The objects of the laws of England are, 1. The rights of persons. 2. The rights of things. 3. Private wrongs. 4. Public wrongs.

CHAP. I. Of the Rights of Persons.

SECT. I. Of the absolute rights of individuals.

(1.) The objects of the Laws of England are, 1. Rights, 2. Wrongs.

(2.) Rights are the rights of persons, or the rights of things.

(3.) The rights of persons are such as concern, and are annexed to, the persons of men: and, when the person to whom they are due is regarded, they are called (simply) rights; but, when we consider the person from whom they are due, they are then denominated duties.

(4.) Persons are either natural, that is, such as they are formed by nature; or artificial, that is, created by human policy, as bodies politic or corporations.

(5.) The rights of natural persons are, 1. Absolute, or such as belong to individuals. 2. Relative, or such as regard members of society.

(6.) The absolute rights of individuals, regarded by the municipal laws (which pay no attention to duties, or civil liberty).

(7.) Political or civil liberty is the natural liberty of mankind, so far restrained by human laws as is necessary for the good of society.

(8.) The absolute rights or civil liberties of Englishmen, as frequently declared in parliament, are principally three; the right of personal security, of personal liberty, and of private property.

(9.) The right of personal security consists in the legal enjoyment of life, limb, body, health, and reputation.

(10.) The right of personal liberty consists in the free power of loco motion, without illegal restraint or banishment.

(11.) The right of private property consists in every man's free use and disposal of his own lawful acquisitions, without injury or illegal diminution.

(12.) Besides these three primary rights, there are others which are secondary and subordinate; viz., (to preserve the former from unlawful attacks) 1. The constitution and power of parliaments; 2. The limitation of the king's prerogative;—And (to vindicate them when actually violated) 3. The regular administration of public justice; 4. The right of petitioning for redress of grievances; 5. The right of having and using arms for self defence.

SECT. II. Of the parliament.

(1.) The relations of persons are, 1. Public. 2. Private. The public relations are those of magistrates and people. Law of people. Magistrates are superior or subordinate. And England, of supreme magistrates, in England, the parliament is epitomized, the supreme legislative, the king the supreme executive.

(2.) Parliaments, in some shape, are of as high antiquity as the Saxon government in this island; and have subsisted, in their present form, at least five hundred years.

(3.) The parliament is assembled by the king's writs, and its sitting must not be intermitted above three years.

(4.) Its constituent parts are the king's majesty, the lords spiritual and temporal, and the commons represented by their members; each of which parts has a negative, or necessary, voice in making laws.

(5.) With regard to the general law of parliament; its power is absolute; each house is the judge of its own privileges; and all the members of either house are entitled to the privilege of speech, of person, of their domestics, and of their lands and goods.

(6.) The peculiar privileges of the lords (besides their judicial capacity), are to hunt in the king's forests; to be attended by the pages of the law; to make proxies; to enter protest; and to regulate the election of the 16 peers of North-Britain.

(7.) The peculiar privileges of the commons are to frame taxes for the subjects; and to determine the merits of their own elections, with regard to the qualifications of the electors and elected, and the proceedings at elections themselves.

(8.) Bills are usually twice read in each house, committed, engrossed, and then read a third time; and when they have obtained the concurrence of both houses, and received the royal assent.

(9.) The houses may adjourn themselves; but the king only can prorogue the parliament.

(10.) Parliaments are dissolved, 1. At the king's will. 2. By the demise of the crown, that is, within six months after. 3. By length of time, or having sat for the space of seven years.

Sect. III. Of the king and his title.

(1.) The supreme executive power of this kingdom is lodged in a single person; the king or queen.

(2.) This royal person may be considered with regard to, 1. His title. 2. His royal family. 3. His councils. 4. His duties. 5. His prerogative. 6. His revenue.

(3.) With regard to his title, the crown of England, by the positive constitution of the kingdom, hath ever been descendible, and so continues.

(4.) The crown is descendible in a course peculiar to itself.

(5.) This course of descent is subject to limitation by parliament.

(6.) Notwithstanding such limitations, the crown retains its descendible quality, and becomes hereditary in the prince to whom it is limited.

(7.) King Egbert, King Canute, and King William I., have been successively constituted the common stocks, or ancestors, of this descent.

(8.) At the revolution the convention of estates, or representative body of the nation, declared, that the misconduct of King James II. amounted to an abdication of the government, and that the throne was thereupon vacant.

(9.) In consequence of this vacancy, and from regard to the ancient line, the convention appointed the next Protestant heirs of the blood royal of King Charles I., to fill the vacant throne, in the old order of succession; with a temporary exception, or preference, to the person of King William III.

(10.) On the impending failure of the Protestant line of King Charles I., whereby the throne might again have become vacant, the king and parliament extended the settlement of the crown to the Protestant line of King James I., viz. to the Princess Sophia of Hanover, and the heirs of her body, being Protestants. And she is now the common stock, from whom the heirs of the crown must descend.

Sect. IV. Of the king's royal family.

(1.) The king's royal family consists, first, of the queen; who is regnant, consort, or dowager.

(2.) The queen consort is a public person, and hath many personal prerogatives and distinct revenues.

(3.) The Prince and Princess of Wales, and the Princesses-royal, are peculiarly regarded by the law.

(4.) The other princes of the blood-royal are only entitled to precedence.

Sect. V. Of the councils belonging to the king.

(1.) The king's councils are, 1. The parliament. 2. The great council of peers. 3. The judges, for civil causes. 4. The privy council.

(2.) In privy-counsellors may be considered, 1. Their creation. 2. Their qualifications. 3. Their duties. 4. Their powers. 5. Their privileges. 6. Their dissolution.

Sect. VI. Of the king's duties.

(1.) The king's duties are to govern his people according to law, to execute judgment in mercy, and to maintain the established religion. These are his part of the original contract between himself and the people, founded in the nature of society, and expressed in his oath at the coronation.

Sect. VII. Of the king's prerogative.

(1.) Prerogative is that special power and pre-eminence which the king hath above other persons, and out of the ordinary course of law, in right of his regal dignity.

(2.) Such prerogatives are either direct, or incidental. The incidental, arising out of other matters, are considered as they arise; we now treat only of the direct.

(3.) The direct prerogatives regard, 1. The king's dignity, or royal character. 2. His authority, or regal power. 3. His revenue, or royal income.

(4.) The king's dignity consists in the legal attributes of, 1. Personal sovereignty. 2. Absolute perfection. 3. Political perpetuity.

(5.) In the king's authority, or regal power, consists the executive part of government.

(6.) In foreign concerns, the king, as the representa- Sect. VIII. Of the king's revenue.

(1.) The king's revenue is either ordinary or extraordinary. And the ordinary is, 1. Ecclesiastical, 2. Temporal.

(2.) The king's ecclesiastical revenue consists in, 1. The custody of the temporalities of vacant bishoprics, 2. Corodies and pensions, 3. Extra-parochial tithes, 4. The first fruits and tenths of benefices.

(3.) The king's ordinary temporal revenue consists in, 1. The demeane lands of the crown, 2. The hereditary excise, being part of the consideration for the purchase of his feudal profits, and the prerogatives of purveyance and pre-emption, 3. An annual sum issuing from the duty on wine-licences; being the residue of the same consideration, 4. His forests, 5. His courts of justice, 6. Royal fish, 7. Wrecks, and things jetsam, flotsam, and lagan, 8. Royal mines, 9. Treasure trove, 10. Waifs, 11. Estrays, 12. Forfeitures for offences, and deodands, 13. Escheats of lands, 14. Custody of idiots and lunatics.

(4.) The king's extraordinary revenue, consists in aids, subsidies, and supplies, granted him by the commons in parliament.

(5.) Heretofore these were usually raised by grants of the (nominal) tenth or fifteenth part of the moveables in every township; or by scutages, hydages, and tallages; which were succeeded by subsidies assessed upon individuals, with respect to their lands and goods.

(6.) A new system of taxation took place about the time of the revolution; our modern taxes are therefore, 1. Annual, 2. Perpetual.

(7.) The annual taxes are, 1. The land-tax, or the ancient subsidy raised upon a new assessment, 2. The malt-tax, being an annual excise on malt, mum, cyder, and perry.

(8.) The perpetual taxes are, 1. The customs, or tonnage and poundage of all merchandise exported or imported, 2. The excise-duty, or inland imposition on a great variety of commodities, 3. The salt-duty, or excise on salt, 4. The post-office, or duty for the carriage of letters, 5. The stamp-duty on paper, parchment, &c., 6. The duty on houses and windows, 7. The duty on licences for hackney coaches and chairs, 8. The duty on offices and pensions.

(9.) Part of this revenue is applied to pay the interest of the national debt, till the principal is discharged by parliament.

(10.) The produce of these several taxes were originally separate and specific funds, to answer specific loans upon their respective credits; but are now consolidated by parliament into three principal funds, the aggregate, general, and Southsea funds, to answer all the debts of the nation; the public faith being also superadded, to supply deficiencies, and strengthen the security of the whole.

(11.) The surpluses of these funds, after paying the interest of the national debt, are carried together, and denominated the sinking fund; which, unless otherwise appropriated by parliament, is annually to be applied towards paying off some part of the principal.

(12.) But, previous to this, the aggregate fund is now charged with an annual sum for the civil list; which is the immediate proper revenue of the crown, settled by parliament on the king at his accession, for defraying the charges of civil government.

Sect. IX. Of subordinate magistrates.

(1.) Subordinate magistrates, of the most general use and authority, are, 1. Sheriffs, 2. Coroners, 3. Justices of the Peace, 4. Constables, 5. Surveyors of the highways, 6. Overseers of the poor.

(2.) The sheriff is the keeper of each county, annually nominated in due form by the king; and is (within his county) a judge, a conservator of the peace, a ministerial officer, and the king's bailiff.

(3.) Coroners are permanent officers of the crown in each county, elected by the freeholders; whose office it is to make inquiry concerning the death of the king's subjects, and certain revenues of the crown; and also, in particular cases, to supply the office of sheriff.

(4.) Justices of the peace are magistrates in each county, statutorily qualified, and commissioned by the king's majesty; with authority to conserve the peace, to hear and determine felonies, and other misdemeanors; and to do many other acts committed to their charge by particular statutes.

(5.) Constables are officers of hundreds and townships, appointed at the leet, and empowered to preserve the peace, to keep watch and ward, and to apprehend offenders.

(6.) Surveyors of the highways are officers appointed annually in every parish; to remove annoyances in, and to direct the reparation of the public roads.

(7.) Overseers of the poor are officers appointed annually in every parish; to relieve such impotent, and employ such sturdy poor, as are settled in each parish, by birth, by parentage, by marriage, or by Sect. X. Of the people, whether aliens, denizens, or natives.

(1.) The people are either aliens, that is, born out of the dominions, or allegiance, of the crown of Great Britain; or natives, that is, born within it.

(2.) Allegiance is the duty of all subjects; being the reciprocal tie of the people to the prince, in return for the protection he affords them; and, in natives, this duty of allegiance is natural and perpetual; in aliens, is local and temporary only.

(3.) The rights of natives are also natural and perpetual; those of aliens, local and temporary only; unless they be made denizens by the king, or naturalised by parliament.

Sect. XI. Of the clergy.

(1.) The people, whether aliens, denizens, or natives, are also either clergy, that is all persons in holy orders, or in ecclesiastical offices; or laity, which comprehends the rest of the nation.

(2.) The clerical part of the nation, thus defined, are, 1. Archbishops and bishops; who are elected by their several chapters, at the nomination of the crown, and afterwards confirmed and consecrated by each other. 2. Deans and chapters. 3. Arch-deacons. 4. Rural deans. 5. Parishes (under which are included appropriators) and vicars; to whom there are generally requisite, holy orders, presentation, institution, and induction. 6. Curates. To which may be added, 7. Church-wardens. 8. Parish-clerks and sextons.

Sect. XII. Of the civil state.

(1.) The laity are divisible into three states; civil, military, and maritime.

(2.) The civil state (which includes all the nation, except the clergy, the army, and the navy, and many individuals among them also), may be divided into the nobility and the commonalty.

(3.) The nobility are dukes, marquises, earls, viscounts, and barons. These had anciently duties annexed to their respective honours: they are created either by writ, that is, by summons to parliament; or by the king's letters patent, that is, by royal grant; and they enjoy many privileges exclusive of their senatorial capacity.

(4.) The commonalty consist of knights of the garter, knights bannerets, baronets, knights of the bath, knights bachelors, esquires, gentlemen, yeomen, tradesmen, artificers, and labourers.

Sect. XIII. Of the military and maritime states.

(1.) The military state, by the standing constitutional law, consists of the militia of each county, raised from among the people by lot, officered by the principal landholders, and commanded by the lord lieutenant.

(2.) The more disciplined occasional troops of the kingdom are kept on foot only from year to year by parliament; and, during that period, are governed by martial law, or arbitrary articles of war, formed at the pleasure of the crown.

(3.) The maritime state consists of the officers and mariners of the British navy; who are governed by express and permanent laws, or the articles of the navy, established by act of parliament.

Sect. XIV. Of master and servant.

(1.) The private, economical, relations of persons are those of, 1. Master and servant. 2. Husband and wife. 3. Parent and child. 4. Guardian and ward.

(2.) The first relation may subsist between a master and four species of servants; (for slavery is unknown to our laws;) viz. 1. Menial servants; who are hired. 2. Apprentices; who are bound by indentures. 3. Labourers; who are casually employed. 4. Stewards, bailiffs, and factors; who are rather in a ministerial state.

(3.) From this relation result divers powers to the master, and emoluments to the servant.

(4.) The master hath a property in the service of his servant; and must be answerable for such acts as the servant does by his express, or implied, command.

Sect. XV. Of husband and wife.

(1.) The second private relation is that of marriage; which includes the reciprocal rights and duties of husband and wife.

(2.) Marriage is duly contracted between persons, 1. Consenting: 2. Free from canonical impediments, which make it voidable: 3. Free also from the civil impediments,—of prior marriage,—of want of age,—of non-consent of parents or guardians, where requisite,—and of want of reason; either of which make it totally void. And it must be celebrated by a clergyman in due form and place.

(3.) Marriage is dissolved, 1. By death. 2. By divorce in the spiritual court; not a mensa et thoro only, but a vinculo matrimonii, for canonical cause existing previous to the contract. 3. By act of parliament, as for adultery.

(4.) By marriage the husband and wife become one person in law; which unity is the principal foundation of their respective rights, duties, and disabilities.

Sect. XVI. Of parent and child.

(1.) The third, and most universal private relation, is that of parent and child.

(2.) Children are, 1. Legitimate; being those who are born in lawful wedlock, or within a competent time after. 2. Bastards, being those who are not so.

(3.) The duties of parents to legitimate children are, 1. Maintenance. 2. Protection. 3. Education.

(4.) The power of parents consists principally in correction, and consent to marriage. Both may after death be delegated by will to a guardian; and the former also, living the parent, to a tutor or master.

(5.) The duties of legitimate children to parents are obedience, protection, and maintenance. (6.) The duty of parents to bastards is only that of maintenance.

(7.) The rights of a bastard are such only as he can acquire; for he is incapable of inheriting anything.

Sect. XVII. Of guardian and ward.

(1.) The fourth private relation is that of guardian and ward, which is plainly derived from the last; these being, during the continuance of their relation, reciprocally subject to the same rights and duties.

(2.) Guardians are of divers sorts: 1. Guardians by nature, or the parents. 2. Guardians for nurture, assigned by the ecclesiastical courts. 3. Guardians in fosterage, assigned by the common law. 4. Guardians by statute, assigned by the father's will. All subject to the superintendence of the court of chancery.

(3.) Full age in male or female for all purposes is the age of 21 years (different ages being allowed for different purposes); till which age the person is an infant.

(4.) An infant, in respect of his tender years, hath various privileges, and various disabilities, in law; chiefly with regard to suits, crimes, estates, and contracts.

Sect. XVIII. Of corporations.

(1.) Bodies politic, or corporations, which are artificial persons, are established for preserving in perpetual succession certain rights; which, being conferred on natural persons only, would fail in process of time.

(2.) Corporations are, 1. Aggregate, consisting of many members. 2. Sole, consisting of one person only.

(3.) Corporations are also either spiritual, erected to perpetuate the rights of the church; or lay. And the lay are, 1. Civils; erected for many temporal purposes. 2. Eleemosynary; erected to perpetuate the charity of the founder.

(4.) Corporations are usually erected and named, by virtue of the king's royal charter; but may be created by act of parliament.

(5.) The powers incident to all corporations are, 1. To maintain perpetual succession. 2. To act in their corporate capacity like an individual. 3. To hold lands, subject to the statutes of mortmain. 4. To have a common seal. 5. To make by-laws. Which last power, in spiritual or eleemosynary corporations, may be executed by the king or the founder.

(6.) The duty of corporations is to answer the ends of their institution.

(7.) To enforce this duty, all corporations may be visited: spiritual corporations by the ordinary; lay corporations by the founder, or his representatives; viz. the civil by the king (who is the fundator incipiens of all) represented in his court of king's bench; the eleemosynary by the endower (who is the fundator perficiens of such), or by his heirs or assigns.

(8.) Corporations may be dissolved, 1. By act of parliament. 2. By the natural death of all their members. 3. By surrender of their franchises. 4. By forfeiture of their charter.

Sect. I. Of Property in general.

(1.) All dominion over external objects has its original from the gift of the Creator to man in general.

(2.) The substance of things was, at first, common to all mankind; yet a temporary property, in the use of them, might even then be acquired, and continued, by occupancy.

(3.) In process of time a permanent property was established in the substance, as well as the use, of things; which was also originally acquired by occupancy only.

(4.) Let this property should determine by the owner's dereliction or death, whereby the thing would again become common, societies have established conveyances, wills, and heirships, in order to continue the property of the first occupant: and, where by accident such property becomes discontinued or unknown, the thing usually results to the sovereign of the state, by virtue of the municipal law.

(5.) But of some things, which are incapable of permanent substantial dominion, there still subsists only the same transient usufructuary property, which originally subsisted in all things.

Sect. II. Of real property; and, first, of corporeal hereditaments.

(1.) In this property, or exclusive dominion, consist the rights of things; which are, 1. Things real. 2. Things personal.

(2.) In things real may be considered, 1. Their several kinds. 2. The tenures by which they may be held. 3. The estates which may be acquired therein. 4. Their title, or the means of acquiring and losing them.

(3.) All the several kinds of things real are reducible to one of these three, viz. lands, tenements, or hereditaments; whereof the second includes the first, and the third includes the first and second.

(4.) Hereditaments, therefore, or whatever may come to be inherited (being the most comprehensive denomination of things real), are either corporeal or incorporeal.

(5.) Corporeal hereditaments consist wholly of lands, in their largest legal sense; wherein they include not only the face of the earth, but every other object of sense adjoining thereto, and subsisting either above or beneath it.

Sect. III. Of incorporeal hereditaments.

(1.) Incorporeal hereditaments are rights issuing out of things corporeal, or concerning, or annexed to, or exercisable within the same.

(2.) Incorporeal hereditaments are, 1. Advowsons. 2. Tithes. 3. Commons. 4. Ways. 5. Offices. 6. Dignities. 7. Franchises. 8. Coronies or pensions. 9. Annuities. 10. Rents. (3.) An advowson is a right of presentation to an ecclesiastical benefice; either appendant, or in gros. This may be, 1. Preferentative. 2. Collative. 3. Donative.

(4.) Tithes are the tenth part of the increase yearly arising from the profits and stock of lands, and the personal industry of mankind. These, by the ancient and positive law of the land, are due of common right to the parson, or (by endowment) to the vicar; unless specially discharged, 1. By real composition. 2. By prescription, either de modo decimandi, or de non decimando.

(5.) Common is a profit which a man hath in the lands of another; being, 1. Common of pasture, which is either appendant, appurtenant, because of vicinage, or in gros. 2. Common of pifery. 3. Common of turbary. 4. Common of leftovers, or botes.

(6.) Ways are a right of passing over another man's ground.

(7.) Offices are the right to exercise a public or private employment.

(8.) For dignities, which are titles of honour, see Chap. I. Sect. 12.

(9.) Franchises are a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject.

(10.) Corodies are allotments for one's sustenance; which may be converted into pensions, see Chap. I. Sect. 8.

(11.) An annuity is a yearly sum of money, charged upon the person, and not upon the lands of the granter.

(12.) Rents are a certain profit ensuing yearly out of lands and tenements; and are reducible to, 1. Rent-service. 2. Rent-charge. 3. Rent-feck.

Sect. IV. Of the Feudal System.

(1.) The doctrine of tenures is derived from the feudal law; which was planted in Europe by its northern conquerors at the dissolution of the Roman empire.

(2.) Pure and proper feuds were parcels of land allotted by a chief to his followers, to be held on the condition of personally rendering due military service to their lord.

(3.) These were granted by investiture; were held under the bond of fealty; were inheritable only by descendants; and could not be transferred without the mutual consent of the lord and vassal.

(4.) Improper feuds were derived from the other; but differed from them in their original, their services and renders, their descent, and other circumstances.

(5.) The lands of England were converted into feuds, of the improper kind, soon after the Norman conquest; which gave rise to the grand maxim of tenure, viz. That all lands in the kingdom are holden, immediately or immediately, of the king.

Sect. V. Of the ancient English Tenures.

(1.) The distinction of tenures consisted in the nature of their services: as, 1. Chivalry, or knight-service; where the service was free, but uncertain. 2. Free socage; where the service was free, and certain. 3. Pure villenage; where the service was base, and uncertain.

4. Privileged villenage, or villein socage; where the service was base, but certain.

(2.) The most universal ancient tenure was that in chivalry, or by knight-service; in which the tenant of every knight's fee was bound, if called upon, to attend his lord to the wars. This was granted by livery, and perfected by homage and fealty; which usually drew after them suit of court.

(3.) The other fruits and consequences of the tenure by knight-service were, 1. Aid. 2. Relief. 3. Primer seisin. 4. Wardship. 5. Marriage. 6. Fines upon alienation. 7. Escheat.

(4.) Grand serjeanty differed from chivalry principally in its render, or service; and not in its fruits and consequences.

(5.) The personal service in chivalry was at length gradually changed into pecuniary affinements, which were called scutage or escheat.

(6.) These military tenures (except the services of grand serjeanty) were, at the restoration of King Charles, totally abolished, and reduced to free socage by act of parliament.

Sect. VI. Of the modern English Tenures.

(1.) Free socage is a tenure by any free, certain, and determinate service.

(2.) This tenure, the relic of Saxon liberty, includes petit serjeanty, tenure in burgage, and gavelkind.

(3.) Free socage lands partake strongly of the feudal nature, as well as those in chivalry: being holden subject to some service, at the least to fealty and suit of court; subject to relief, to wardship, and to escheat, but not to marriage; subject also formerly to aids, primer seisin, and fines for alienation.

(4.) Pure villenage was a precarious and slaveish tenure, at the absolute will of the lord, upon uncertain services of the basest nature.

(5.) From hence, by tacit consent or encroachment, have arisen the modern copyholds, or tenure by copy of court-roll; in which lands may be still held at the (nominal) will of the lord, (but regulated) according to the custom of the manor.

(6.) These are subject, like socage lands, to services relief, and escheat; and also to heriots, wardship, and fines upon descent and alienation.

(7.) Privileged villenage, or villein socage, is an exalted species of copyhold tenure, upon base, but certain, services; subsisting only in the ancient demesnes of the crown; whence the tenure is denominated the tenure in ancient demesne.

(8.) These copyholds of ancient demesne have divers immunities annexed to their tenure; but are still held by copy of court-roll, according to the custom of the manor, though not at the will of the lord.

(9.) Frankalmogin is a tenure by spiritual services at large, whereby many ecclesiastical and eleemosynary corporations now hold their lands and tenements; being of a nature distinct from tenure by divine service in certain.

Sect. VII. Of freehold estates of inheritance.

(1.) Estates in lands, tenements, and hereditaments, are such interest as the tenant hath therein; to ascertain which, may be considered, 1. The quantity of Part II.

Law of England, and connections of the tenants.

(2.) Estates, with respect to their quantity of interest, or duration, are either freehold, or less than freehold.

(3.) A freehold estate, in lands, is such as is created by livery of seisin at common law; or, in tenements of an incorporeal nature, by what is equivalent thereto.

(4.) Freehold estates are either estates of inheritance, or not of inheritance, viz. for life only: and inheritances are, 1. Absolute, or fee simple. 2. Limited fees.

(5.) Tenant in fee simple is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever.

(6.) Limited fees are, 1. Qualified, or base, fees. 2. Fees conditional at the common law.

(7.) Qualified or base fees are those which, having a qualification subjoined thereto, are liable to be defeated when that qualification is at an end.

(8.) Conditional fees, at the common law, were such as were granted to the donee, and the heirs of his body, in exclusion of collateral heirs.

(9.) These were held to be fees, granted on condition that the donee had issue of his body; which condition being once performed by the birth of issue, the donee might immediately alien the land: but the statute de donis being made to prevent such alteration, thereupon from the division of the fee (by construction of this statute) into a particular estate and a reversion, the conditional fees began to be called fees tail.

(10.) All tenements real, or favouring of the realty, are subject to entails.

(11.) Estates tail may be, 1. general, or special; 2. male, or female; 3. given in frank marriage.

(12.) Incident to estates tail are, 1. Waite. 2. Dower. 3. Curtesy. 4. Bar;—by fine, recovery, or lineal warranty with assets.

(13.) Estates tail are now, by many statutes and resolutions of the courts, almost brought back to the state of conditional fees at the common law.

Sect. VIII. Of freeholds, not of inheritance.

(1.) Freeholds, not of inheritance, or for life only, are, 1. Conventional, or created by the act of the parties. 2. Legal, or created by operation of law.

(2.) Conventional estates for life are created by an express grant for term of one's own life, or pur auter vie; or by a general grant, without expressing any term at all.

(3.) Incident to this, and all other estates for life, are leftovers, and emblems: and to estates per auter vie general occupancy was also incident; as special occupancy still is, if cestuy que vie survives the tenant.

(4.) Legal estates for life are, 1. Tenancy in tail, after possibility of issue extinct. 2. Tenancy by the curtesy of England. 3. Tenancy in dower.

(5.) Tenancy in tail, after possibility of issue extinct, is where an estate is given in special tail; and, before issue had, a person dies from whose body the issue was to spring; whereupon the tenant (if surviving) becomes tenant in tail, after possibility of issue extinct.

(6.) This estate partakes both of the incidents to an estate tail, and those of an estate for life.

(7.) Tenancy by the curtesy of England is where a man's wife is seised of an estate of inheritance; and he by her has issue, born alive, which was capable of inheriting her estate; in which case he shall, upon her death, hold the tenements for his own life, as tenant by the curtesy.

(8.) Tenancy in dower is where a woman's husband is seised of an estate of inheritance, of which her issue might by any possibility have been heir; and the husband dies: the woman is thereupon intitled to dower, or one third part of the lands and tenements, to hold for her natural life.

(9.) Dower is either by the common law; by special custom; ad optimum ecclesiae; or, ex affinitate patris.

(10.) Dower may be forfeited or barred, particularly by an estate in jointure.

Sect. IX. Of estates less than freehold.

(1.) Estates less than freehold are, 1. Estates for years. 2. Estates at will. 3. Estates at sufferance.

(2.) An estate for years is where a man, seised of lands and tenements, letteeth them to another for a certain period of time, which transfers the interest of the term; and the lessee enters thereon, which gives him possession of the term, but not legal seisin of the land.

(3.) Incident to this estate are leftovers; and also emblems, if it determines before the full end of the term.

(4.) An estate at will is where lands are let by one man to another, to hold at the will of both parties; and the lessee enters thereon.

(5.) Copyholds are estates held at the will of the lord, (regulated) according to the custom of the manor.

(6.) An estate at sufferance is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all.

Sect. X. Of estates upon condition.

(1.) Estates (whether freehold or otherwise) may also be held upon condition; in which case their existence depends on the happening, or not happening, of some uncertain event.

(2.) These estates are, 1. On condition implied. 2. On condition expressed. 3. Estates in gage. 4. Estates by statute, merchant or staple. 5. Estates by elegit.

(3.) Estates on condition implied are where a grant of an estate has, from its essence and constitution, a condition inseparably annexed to it; though none be expressed in words.

(4.) Estates on condition expressed are where an express qualification or provision is annexed to the grant of an estate.

(5.) On the performance of these conditions either expressed or implied (if precedent) the estate may be vested or enlarged; or, on the breach of them (if subsequent) an estate already vested may be defeated.

(6.) Estates in gage, in wadio, or in pledge, are estates granted as a security for money lent; being, Law of England, epitomised.

1. In vivo vadio, or living gage; where the profits of land are granted till a debt be paid, upon which payment the grantor's estate will revive.

2. In mortuo vadio, in dead, or mort gage; where an estate is granted, on condition to be void at a day certain, if the grantor then repays the money borrowed; on failure of which, the estate becomes absolutely dead to the grantor.

(7.) Estates by statute-merchant, or statute-deal, are also estates conveyed to creditors, in pursuance of certain statutes, till their profits shall discharge the debt.

(8.) Estates by eject are where, in consequence of a judicial writ so called, lands are delivered by the sheriff to a plaintiff, till their profits shall satisfy a debt adjudged to be due by law.

Sect. XI. Of estates in possession, remainder, and reversion.

(1.) Estates, with respect to their time of enjoyment, are either in immediate possession, or in expectancy; which estates in expectancy are created at the same time, and are parcel of the same estates, as those upon which they are expectant. These are, 1. Remainders.

2. Reversions.

(2.) A remainder is an estate limited to take effect, and be enjoyed, after another particular estate is determined.

(3.) Therefore, 1. There must be a precedent particular estate, in order to support a remainder. 2. The remainder must pass out of the grantor, at the creation of the particular estate. 3. The remainder must vest in the grantee, during the continuance, or at the determination, of the particular estate.

(4.) Remainders are, 1. Veiled; where the estate is fixed to remain to a certain person, after the particular estate is spent. 2. Contingent; where the estate is limited to take effect, either to an uncertain person, or upon an uncertain event.

(5.) An executory devise is such a disposition of lands, by will, that an estate shall not vest thereby at the death of the deviser, but only upon some future contingency, and without any precedent particular estate to support it.

(6.) A reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted; to which are incident scatly, and rent.

(7.) Where two estates, the one less, the other greater, the one in possession, the other in expectancy, meet together in one and the same person, and in one and the same right, the less is merged in the greater.

Sect. XII. Of estates, in severalty, joint tenancy, coparcenary, and common.

(1.) Estates, with respect to the number and connections of their tenants, may be held, 1. In severalty. 2. In joint-tenancy. 3. In coparcenary. 4. In common.

(2.) An estate in severalty is where one tenant holds it in his own sole right, without any other person being joined with him.

(3.) An estate in joint-tenancy is where an estate is granted to two or more persons; in which case the law construes them to be joint-tenants, unless the words of the grant expressly exclude such construction.

(4.) Joint-tenants have an unity of interest, of title, of time, and of possession; they are seised per my & per tout; and therefore upon the defeasance of one joint-tenant, the whole interest remains to the survivor.

(5.) Joint-tenancy may be dissolved, by destroying one of its four constituent unities.

(6.) An estate in coparcenary is where an estate of inheritance descends from the ancestor to two or more persons; who are called parcers, and all together make but one heir.

(7.) Parcers have an unity of interest, title, and possession; but are only seised per my, and not per tout; wherefore there is no survivorship among parcers.

(8.) Incident to this estate is the law of hotchpot.

(9.) Coparcenary may also be dissolved, by destroying any of its three constituent unities.

(10.) An estate in common is where two or more persons hold lands, possibly by distinct titles, and for distinct interests; but by unity of possession, because none knoweth his own severalty.

(11.) Tenants in common have therefore an unity of possession, (without survivorship; being seised per my, and not per tout;) but no necessary unity of title, time, or interest.

(12.) This estate may be created, 1. By dissolving the constituent unities of the two former; 2. By express limitation in a grant; and may be destroyed, 1. By uniting the several titles in one tenant; 2. By partition of the land.

Sect. XIII. Of the title to things real, in general.

(1.) A title to things real is the means whereby a man cometh to the just possession of his property.

(2.) Herein may be considered, 1. A mere or naked possession. 2. The right of possession; which is, 1/2, an apparent, 2dly, an actual right. 3. The mere right of property. 4. The conjunction of actual possession with both these rights; which constitutes a perfect title.

Sect. XIV. Of title by descent.

(1.) The title to things real may be reciprocally acquired or lost, 1. By descent. 2. By purchase.

(2.) Descent is the means whereby a man, on the death of his ancestor, acquires a title to his estate, in right of representation, as his heir at law.

(3.) To understand the doctrine of descents, we must form a clear notion of consanguinity; which is the connection, or relation, of persons descended from the same stock or common ancestor; and it is, 1. Lineal, where one of the kinsmen is lineally descended from the other. 2. Collateral, where they are lineally descended, not one from the other, but both from the same common ancestor.

(4.) The rules of descent, or canons, of inheritance, observed by the laws of England, are these:

1/2, Inheritances shall lineally descend to the issue of the the person last actually seised, in infinitum; but shall never lineally descend.

2d. The male issue shall be admitted before the female.

3d. Where there are two or more males in equal degree, the eldest only shall inherit; but the females all together.

4th. The lineal descendants, in infinitum, of any person deceased shall represent their ancestor; that is, shall stand in the same place as the person himself would have done, had he been living.

5th. On failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to the blood of the first purchaser; subject to the three preceding rules. To evidence which blood, the two following rules are established.

6th. The collateral heir of the person last seised must be his next collateral kinsman, of the whole blood.

7th. In collateral inheritances, the male stocks shall be preferred to the female; that is, kindred derived from the blood of the male ancestors shall be admitted before those from the blood of the female: unless where the lands have, in fact, descended from a female.

Sect. XV. Of title by purchase, and first by escheat.

(1.) Purchase, or perquittance, is the possession of an estate which a man hath by his own act or agreement; and not by the mere act of law, or descent from any of his ancestors. This includes, 1. Escheat. 2. Occupancy. 3. Prescription. 4. Forfeiture. 5. Alienation.

(2.) Escheat is where, upon deficiency of the tenant's inheritable blood, the estate falls to the lord of the fee.

(3.) Inheritable blood is wanting to, 1. Such as are not related to the person last seised. 2. His maternal relations in paternal inheritances, and vice versa. 3. His kindred of the half blood. 4. Monsters. 5. Bastards. 6. Aliens, and their issue. 7. Persons attainted of treason or felony. 8. Papists, in respect of themselves only, by the statute law.

Sect. XVI. Of title by occupancy.

(1.) Occupancy is the taking possession of those things which before had no owner.

(2.) Thus, at the common law, where tenant pur auter die died during the life of cestuy que vie, he, who could first enter, might lawfully retain the possession; unless by the original grant the heir was made a special occupant.

(3.) The law of derelictions and alienations has narrowed the title by occupancy.

Sect. XVII. Of title by prescription.

(1.) Prescription (as distinguished from custom) is a personal immemorial usage of enjoying a right in some incorporeal hereditament, by a man, and either his ancestors or those whose estate of inheritance he hath; of which the first is called prescribings in his ancestors, the latter in a que estate.

Sect. XVIII. Of title by forfeiture.

(1.) Forfeiture is a punishment annexed by law to some illegal act, or negligence, in the owner of things real; whereby the estate is transferred to another, who is usually the party injured.

(2.) Forfeitures are occasioned, 1. By crimes. 2. By alienation contrary to law. 3. By larceny. 4. By simony. 5. By nonperformance of conditions. 6. By wills. 7. By breach of copyhold customs. 8. By bankruptcy.

(3.) Forfeitures for crimes, or misdemeanors, are for, 1. Treason. 2. Felony. 3. Misprision of treason. 4. Preamunire. 5. Assaults on a judge, and batteries, fitting the courts. 6. Popish recusancy, &c.

(4.) Alienations, or conveyances, which induce a forfeiture, are, 1. Those in mortmain, made to corporations contrary to the statute law. 2. Those made to aliens. 3. Those made by particular tenants, when larger than their estates will warrant.

(5.) Laps is a forfeiture of the right of presentation to a vacant church, by neglect of the patron to present within six calendar months.

(6.) Simony is the corrupt presentation of anyone to an ecclesiastical benefice, whereby that turn becomes forfeited to the crown.

(7.) For forfeiture by nonperformance of conditions, see Sect. 10.

(8.) Wills is a spoil, or destruction, in any corporeal hereditaments, to the prejudice of him that hath the inheritance.

(9.) Copyhold estates may have also other peculiar causes of forfeiture, according to the custom of the manor.

(10.) Bankruptcy is the act of becoming a bankrupt; that is, a trader who recedes himself, or does certain other acts tending to defraud his creditors, (See Sect. 22.)

(11.) By bankruptcy all the estates of the bankrupt are transferred to the assignees of his commissioners, to be sold for the benefit of his creditors.

Sect. XIX. Of title by alienation.

(1.) Alienation, conveyance, or purchase in its more limited sense, is a means of transferring real estates, wherein they are voluntarily resigned by one man, and accepted by another.

(2.) This formerly could not be done by a tenant, without licence from his lord; nor by a lord, without attornment of his tenant.

(3.) All persons are capable of purchasing; and all that are in possession of any estates, are capable of conveying them; unless under peculiar disabilities by law; as being attainted, non compositi, infants, under durels, feme-coverts, aliens, or papists.

(4.) Alienations are made by common assurances; which are, 1. By deed, or matter in pais. 2. By matter of record. 3. By special custom. 4. By devise.

Sect. XX. Of alienation by deed.

(1.) In assurances by deed may be considered, 1. Its general nature. 2. Its several species.

(2.) A deed, in general, is the solemn act of the parties. parties; being usually a writing sealed and delivered; and it may be, 1. A deed indented, or indenture. 2. A deed poll.

(3.) The requisites of a deed are, 1. Sufficient parties, and proper subject-matter. 2. A good and sufficient consideration. 3. Writing on paper, or parchment, duly stamped. 4. Legal and orderly parts: (which are usually, 1st, the premises; 2dly, the habendum; 3dly, the tenendum; 4thly, the reddendum; 5thly, the conditions; 6thly, the warranty, which is either lineal or collateral; 7thly, the covenants; 8thly, the conclusion, which includes the date). 5. Reading it, if desired. 6. Sealing, and, in many cases, signing it also. 7. Delivery. 8. Attestation.

(4.) A deed may be avoided, 1. By the want of any of the requisites before-mentioned. 2. By subsequent matter; as, 1st, Rasure, or alteration. 2dly, Defacing its seal. 3dly, Cancelling it. 4thly, Disagreement of those whose consent is necessary. 5thly, Judgment of a court of justice.

(5.) Of the several species of deeds, some serve to convey real property, some only to charge and discharge it.

(6.) Deeds which serve to convey real property, or conveyances, are either by common law, or by statute. And, of conveyances by common law, some are original or primary, others derivative or secondary.

(7.) Original conveyances are, 1. Feoffments. 2. Gifts. 3. Grants. 4. Leases. 5. Exchanges. 6. Partitions. Derivative are, 7. Releases. 8. Confirmations. 9. Surrenders. 10. Assignments. 11. Defeasances.

(8.) A feoffment is the transfer of any corporeal hereditament to another, perfected by livery of seisin, or delivery of bodily possession from the feoffer to the feoffee; without which no freehold estate therein can be created at common law.

(9.) A gift is properly the conveyance of lands in tail.

(10.) A grant is the regular method, by common law, of conveying incorporeal hereditaments.

(11.) A lease is the demise, granting, or letting to farm of any tenement, usually for a less term than the lessor hath therein; yet sometimes possibly for a greater; according to the regulations of the restraining and enabling statutes.

(12.) An exchange is the mutual conveyance of equal interests, the one in consideration of the other.

(13.) A partition is the division of an estate held in joint-tenancy, in coparcenary, or in common, between the respective tenants; so that each may hold his distinct part in severalty.

(14.) A release is the discharge or conveyance of a man's right, in lands and tenements, to another that hath some former estate in possession therein.

(15.) A confirmation is the conveyance of an estate or right in seisin, whereby a voidable estate is made sure, or a particular estate is increased.

(16.) A surrender is the yielding up of an estate for life, or years, to him that hath the immediate remainder or reversion; wherein the particular estate may merge.

(17.) An assignment is the transfer, or making over to another, of the whole right one has in any estate; but usually in a lease, for life or years.

(18.) A defeasance is a collateral deed, made at the same time with the original conveyance; containing some condition, upon which the estate may be defeated.

(19.) Conveyances by statute depend much on the doctrine of uses and trusts: which are a confidence repose in the terre tenant, or tenant of the land, that he shall permit the profits to be enjoyed, according to the directions of cestuy que use, or cestuy que trust.

(20.) The statute of uses, having transferred all uses into actual possession, (or, rather, having drawn the possession to the use), has given birth to divers other species of conveyance: 1. A covenant to stand seised to use. 2. A bargain and sale, enrolled. 3. A lease and release. 4. A deed to lead or declare the use of other more direct conveyances. 5. A revocation of uses; being the execution of a power, referred at the creation of the use, of recalling at a future time the use or estate so creating. All which owe their present operation principally to the statute of uses.

(21.) Deeds which do not convey, but only charge real property, and discharge it, are, 1. Obligations. 2. Recognizances. 3. Defeasances upon both.

Sect. XXI. Of alienation by matter of record.

(1.) Assurances by matter of record are where the sanction of some court of record is called in, to substantiate and witness the transfer of real property. These are, 1. Private acts of parliament. 2. The king's grants. 3. Fines. 4. Common recoveries.

(2.) Private acts of parliament are a species of assurances, calculated to give (by the transcendent authority of parliament) such reasonable powers or relief as are beyond the reach of the ordinary course of law.

(3.) The king's grants, contained in charters or letters patent, are all entered on record, for the dignity of the royal person, and security of the royal revenue.

(4.) A fine (sometimes said to be a feoffment of record) is an amicable composition and agreement of an actual, or fictitious, suit; whereby the estate in question is acknowledged to be the right of one of the parties.

(5.) The parts of a fine are, 1. The writ of covenant. 2. The licence to agree. 3. The concord. 4. The note. 5. The foot. To which the statute hath added, 6. Proclamations.

(6.) Fines are of four kinds: 1. Sur cognizance de droit, come ceo que il ad de son done. 2. Sur cognizance de droit tantum. 3. Sur concessit. 4. Sur done, grant, et render; which is a double fine.

(7.) The force and effect of fines (when levied by such as have themselves any interest in the estate) are to assure the lands in question to the cognizant, by barring the respective rights of parties, privies, and strangers.

(8.) A common recovery is by an actual, or fictitious, suit or action for land, brought against the tenant of the freehold; who thereupon vouches another, who undertakes to warrant the tenant's title: but, upon such vouchee's making default, the land is recovered by judgment at law against the tenant; who, in return, obtains judgment against the vouchee to recover lands of equal value in recompense.

(9.) The force and effect of a recovery are to assure lands lands to the recoverer, by barring estates tail, and all remainders and reverions expectant thereon; provided the tenant in tail either suffers, or is vouched in, such recovery.

(1.) The use of a fine or recovery may be directed by, 1. Deeds to lead such uses; which are made previous to the levying or suffering them. 2. Deeds to declare the uses; which are made subsequent.

Sect. XXII. Of alienation by special custom.

(1) Assurances by special custom are confined to the transfer of copyhold estates.

(2) This is effected by, 1. Surrender by the tenant into the hands of the lord to the use of another, according to the custom of the manor. 2. Presentment, by the tenants or homage, of such surrender. 3. Admittance of the surrenderee by the lord, according to the uses expressed in such surrender.

(3) Admittance may also be had upon original grants to the tenant from the lord, and upon devises to the heir from the ancestor.

Sect. XXIII. Of alienation by devise.

(1) Devise is a disposition of lands and tenements, contained in the last will and testament of the owner.

(2) This was not permitted by the common law, as it stood since the conquest; but was introduced by the statute law, under Henry VIII., since made more universal by the statute of tenures under Charles II., with the introduction of additional solemnities by the statute of frauds and perjuries in the same reign.

(3) The construction of all common assurances should be, 1. Agreeable to the intention. 2. To the words of the parties. 3. Made upon the entire deed. 4. Bearing strongly against the contractor. 5. Conformable to law. 6. Rejecting the latter of two totally repugnant clauses in a deed, and the former in a will. 7. Most favourable in case of a devise.

Sect. XXIV. Of things personal.

(1) Things personal are comprehended under the general name of chattels; which includes whatever wants either the duration, or the immobility, attending things real.

(2) In these are to be considered, 1. Their distribution. 2. The property of them. 3. The title to that property.

(3) As to the distribution of chattels, they are, 1. Chattels real. 2. Chattels personal.

(4) Chattels real are such quantities of interest, in things immoveable, as are short of the duration of freeholds; being limited to a time certain, beyond which they cannot subsist. (See Sect. 7.)

(5) Chattels personal are things moveable; which may be transferred from place to place, together with the person of the owner.

Sect. XXV. Of property in things personal.

(1) Property in chattels personal, is either in possession, or in action.

(2) Property in possession, where a man has the actual enjoyment of the thing, is, 1. Absolute. 2. Qualified.

(3) Absolute property is where a man has such an exclusive right in the thing, that it cannot cease to be his, without his own act or default.

(4) Qualified property is such as is not, in its nature, permanent; but may sometimes subsist, and at other times not subsist.

(5) This may arise, 1. Where the subject is incapable of absolute ownership. 2. From the peculiar circumstances of the owners.

(6) Property in action, is where a man hath not the actual occupation of the thing; but only a right to it, arising upon some contract, and recoverable by an action at law.

(7) The property of chattels personal is liable to remainders, expectant on estates for life; to joint-tenancy; and to tenancy in common.

Sect. XXVI. Of title to things personal by occupancy.

(1) The title to things personal may be acquired or lost by, 1. Occupancy. 2. Prerogative. 3. Forfeiture. 4. Custom. 5. Succession. 6. Marriage. 7. Judgement. 8. Gift, or grant. 9. Contract. 10. Bankruptcy. 11. Testament. 12. Administration.

(2) Occupancy still gives the first occupant a right to those few things which have no legal owner, or which are incapable of permanent ownership. Such as, 1. Goods of alien enemies. 2. Things found. 3. The benefit of the elements. 4. Animals fere nature. 5. Emblems. 6. Things gained by accession; or, 7. By confusion. 8. Literary property.

Sect. XXVII. Of title by prerogative, and forfeiture.

(1) By prerogative is vested in the crown, or its grantees, the property of the royal revenue, (see Chap. I. Sect. 8.); and also the property of all game in the kingdom, with the right of pursuing and taking it.

(2) By forfeiture, for crimes and misdemeanors, the right of goods and chattels may be transferred from one man to another; either in part or totally.

(3) Total forfeitures of goods arise from conviction of, 1. Treason, and misprision thereof. 2. Felony. 3. Excusable homicide. 4. Outlawry for treason or felony. 5. Flight. 6. Standing mute. 7. Assaults on a judge; and batteries, sitting the courts. 8. Premunire. 9. Pretended prophecies. 10. Owling. 11. Residing abroad of artificers. 12. Challenges to fight, for debts at play.

Sect. XXVIII. Of title by custom.

(1) By custom, obtaining in particular places, a right may be acquired in chattels: the most usual of which customs are those relating to, 1. Heriots. 2. Mortuaries. 3. Heir looms.

(2) Heriots are either heriot-service, which differs little from a rent; or heriot-custom, which is a customary tribute, of goods and chattels, payable to the lord of the fee on the decease of the owner of lands.

(3) Mortuaries are a customary gift, due to the minister in many parishes, on the death of his parishioners. (4.) Heir-looks are such personal chattels, as descend by special custom to the heir, along with the inheritance of his ancestor.

Sect. XXIX. Of title by succession, marriage, and judgment.

(1.) By succession the right of chattels is vested in corporations aggregate; and likewise in such corporations sole as are the heads and representatives of bodies aggregate.

(2.) By marriage the chattels real and personal of the wife are vested in the husband, in the same degree of property, and with the same powers, as the wife when sole had over them; provided he reduces them to possession.

(3.) The wife also acquires, by marriage, a property in her own paraphernalia.

(4.) By judgment, consequent on a suit at law, a man may in some cases, not only recover, but originally acquire, a right to personal property. As, 1. To penalties recoverable by action popular. 2. To damages. 3. To costs of suit.

Sect. XXX. Of title by gift, grant, and contract.

(1.) A gift, or grant, is a voluntary conveyance of a chattel personal in possession, without any consideration or equivalent.

(2.) A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing: and, by such contract, any personal property (either in possession or in action) may be transferred.

(3.) Contracts may either be express or implied; either executed or executory.

(4.) The consideration of contracts is, 1. A good consideration. 2. A valuable consideration; which is, 1. Do, ut des. 2. Facio, ut facias. 3. Facio, ut des. 4. Do, ut facias.

(5.) The most usual species of personal contracts are, 1. Sale or exchange. 2. Bailment. 3. Hiring or borrowing. 4. Debt.

(6.) Sale or exchange is a transmutation of property from one man to another, in consideration of some recompense in value.

(7.) Bailment is the delivery of goods in trust; upon a contract, express or implied, that the trust shall be faithfully performed by the bailee.

(8.) Hiring or borrowing is a contract, whereby the possession of chattels is transferred for a particular time, on condition that the identical goods (or sometimes their value) be restored at the time appointed: together with (in case of hiring) a stipend or price for the use.

(9.) This price, being calculated to answer the hazard as well as inconvenience of lending, gives birth to the doctrine of interest, or usury, upon loans; and, consequently, to the doctrine of bottomry or respondentia, and insurance.

(10.) Debt is any contract, whereby a certain sum of money becomes due to the creditor. This is, 1. A debt of record. 2. A debt upon special contract. 3. A debt upon simple contract; which last includes paper credit, or bills of exchange, and promissory notes.

Sect. XXXI. Of title by bankruptcy.

(1.) Bankruptcy (as defined in Sect. 18.) is the act of becoming a bankrupt.

(2.) Herein may be considered, 1. Who may become a bankrupt. 2. The act whereby he may become a bankrupt. 3. The proceedings on a commission of bankrupt. 4. How his property is transferred thereby.

(3.) Persons of full age, using the trade of merchandise, by buying, and selling, and seeking their livelihood thereby, are liable to become bankrupts; for debts of a sufficient amount.

(4.) A trader, who endeavours to avoid his creditors, or evade their just demands, by any of the ways specified in the several statutes of bankruptcy, doth thereby commit an act of bankruptcy.

(5.) The proceedings on a commission of bankrupt, so far as they affect the bankrupt himself, are principally by, 1. Petition. 2. Commission. 3. Declaration of bankruptcy. 4. Choice of assignees. 5. The bankrupt's surrender. 6. His examination. 7. His discovery. 8. His certificate. 9. His allowance. 10. His indemnity.

(6.) The property of a bankrupt's personal estate is immediately upon the act of bankruptcy, vested by construction of law in the assignees; and they, when they have collected, distribute the whole by equal dividends among all the creditors.

Sect. XXXII. Of title by testament, and administration.

(1.) Concerning testaments and administrations, considered jointly, are to be observed, 1. Their original and antiquity. 2. Who may make a testament. 3. Its nature and incidents. 4. What are executors and administrators. 5. Their office and duty.

(2.) Testaments have subsisted in England immemorially; whereby the deceased was at liberty to dispose of his personal estate, referring anciently to his wife and children their reasonable part of his effects.

(3.) The goods of intestates belonged anciently to the king; who granted them to the prelates to be disposed in pious uses: but, on their abuse of this trust in the times of popery, the legislature compelled them to delegate their power to administrators expressly provided by law.

(4.) All persons may make a testament unless disabled by, 1. Want of discretion. 2. Want of free-will. 3. Criminal conduct.

(5.) Testaments are the legal declaration of a man's intentions, which he wills to be performed after his death. These are, 1. Written. 2. Nuncupative.

(6.) An executor is he, to whom a man by his will commits the execution thereof.

(7.) Administrators are, 1. Durante minore estate of an infant executor or administrator; or durante absentia; or pendente lite. 2. Cum testamento annexo; when no executor is named, or the executor refuses to act. 3. General administrators; in pursuance of the statutes of Edward III. and Henry VIII. 4. Administrators de bonis non; when a former executor or administrator dies without completing his trust. (8.) The office and duty of executors (and, in many points, of administrators also), are, 1. To bury the deceased. 2. To prove the will, or take out administration. 3. To make an inventory. 4. To collect the goods and chattels. 5. To pay debts; observing the rules of priority. 6. To pay legacies, either general or specific; if they be vested, and not lapsed. 7. To distribute the undevised surplus, according to the statute of distributions.

CHAP. III.

Of Private Wrongs.

Sect. I. Of the redress of private wrongs, by the mere act of the parties.

(1.) Wrongs are the privation of right; and are, 1. Private. 2. Public.

(2.) Private wrongs, or civil injuries, are an infringement, or privation, of the civil rights of individuals, considered as individuals.

(3.) The redress of civil injuries is one principal object of the laws of England.

(4.) This redress is effected, 1. By the mere act of the parties. 2. By the mere operation of law. 3. By both together, or suit in courts.

(5.) Redress, by the mere act of the parties, is that which arises, 1. From the sole act of the party injured. 2. From the joint act of all the parties.

(6.) Of the first sort are, 1. Defence of one's self, or relations. 2. Reception of goods. 3. Entry on lands and tenements. 4. Abatement of nuisances. 5. Distress; for rent, for suit or service, for arrears, for damage, or for divers statutable penalties;—made of such things only as are legally distrainable;—and taken and disposed of according to the due course of law. 6. Seizing of heriots, &c.

(7.) Of the second sort are, 1. Accord. 2. Arbitration.

Sect. II. Of redress by the mere operation of law.

Redress, effected by the mere operation of law, is,

1. In the case of retainer; where a creditor is executor or administrator, and is thereupon allowed to retain his own debt. 2. In the case of remitter; where one, who has a good title to lands, &c. comes into possession by a bad one, and is thereupon remitted to his ancient good title, which protects his ill-acquired possession.

Sect. III. Of courts in general.

(1.) Redress, that is effected by the act both of law and of the parties, is by suit or action in the courts of justice.

(2.) Herein may be considered, 1. The courts themselves. 2. The cognizance of wrongs or injuries therein. And, of courts, 1. Their nature and incidents. 2. Their several species.

(3.) A court is a place wherein justice is judicially administered, by officers delegated by the crown; being a court either of record, or not of record.

(4.) Incident to all courts are a plaintiff, defendant, and judge: and, with us, there are also usually attorneys; and advocates or counsel, viz. either barristers or sergeants at law.

Sect. IV. Of the public courts of common law and equity.

(1.) Courts of justice, with regard to their several species, are, 1. Of a public, or general, jurisdiction throughout the realm. 2. Of a private, or special, jurisdiction.

(2.) Public courts of justice are, 1. The courts of common law and equity. 2. The ecclesiastical courts. 3. The military courts. 4. The maritime courts.

(3.) The general and public courts of common law and equity are, 1. The court of piepowder. 2. The court-baron. 3. The hundred court. 4. The county court. 5. The court of common pleas. 6. The court of king's bench. 7. The court of exchequer. 8. The court of chancery. (Which two last are courts of equity as well as law.) 9. The courts of exchequer-chamber. 10. The house of peers. To which may be added, as auxiliaries, 11. The courts of assize and nisi prius.

Sect. V. Of courts ecclesiastical, military, and maritime.

(1.) Ecclesiastical courts (which were separated from the temporal by William the Conqueror), or courts Christian, are, 1. The court of the archdeacon. 2. The court of the bishop's consistory. 3. The court of arches. 4. The court of peculiars. 5. The prerogative court. 6. The court of delegates. 7. The court of review.

(2.) The only permanent military court is that of chivalry; the courts martial, annually established by act of parliament, being only temporary.

(3.) Maritime courts are, 1. The court of admiralty and vice admiralty. 2. The court of delegates. 3. The lords of the privy council, and others, authorized by the king's commission, for appeals in prize-causes.

Sect. VI. Of courts of a special jurisdiction.

Courts of a special or private jurisdiction are, 1. The forest courts; including the courts of attachments, regard, swinmote, and justice scat. 2. The court of commissioners of sewers. 3. The court of policies of assurance. 4. The court of the marthalfase and the palace court. 5. The courts of the principality of Wales. 6. The court of the duchy chamber of Lancaster. 7. The courts of the counties palatine, and other royal franchises. 8. The flattery courts. 9. The courts of London, and other corporations:—To which may be referred the courts of requests or courts of conscience; and the modern regulations of certain courts baron and county courts. 10. The courts of the two universities.

Sect. VII. Of the cognizance of private wrongs.

(1.) All private wrongs or civil injuries are cognizable either in the courts ecclesiastical, military, maritime, or those of common law. (2.) Injuries cognizable in the ecclesiastical courts are,

1. Pecuniary. 2. Matrimonial. 3. Testamentary.

(3.) Pecuniary injuries, here cognizable, are,

1. Subtraction of tithes. For which the remedy is by suit to compel their payment, or an equivalent; and also their double value. 2. Nonpayment of ecclesiastical dues. Remedy: by suit for payment. 3. Spoliation. Remedy: by suit for restitution. 4. Dilapidations. Remedy: by suit for damages. 5. Non-repair of the church, &c.; and non-payment of church-rates. Remedy: by suit to compel them.

(4.) Matrimonial injuries are,

1. Jabitation of marriage. Remedy: by suit for perpetual silence. 2. Subtraction of conjugal rights. Remedy: by suit for restitution. 3. Inability for the marriage state. Remedy: by suit for divorce. 4. Refusal of decent maintenance to the wife. Remedy: by suit for alimony.

(5.) Testamentary injuries are,

1. Disputing the validity of wills. Remedy: by suit to establish them. 2. Obstructing of administrations. Remedy: by suit for the granting them. 3. Subtraction of legacies. Remedy: by suit for the payment.

(6.) The course of proceedings herein is much conformed to the civil and canon law; but their only compulsive process is that of excommunication; which is enforced by the temporal writ of significavit, or de excommunicato capiendo.

(7.) Civil injuries, cognizable in the court military, or court of chivalry, are,

1. Injuries in point of honour. Remedy: by suit for honourable amends. 2. Encroachments in coat-armour, &c. Remedy: by suit to remove them. The proceedings are in a summary method.

(8.) Civil injuries cognizable in the courts maritime, are injuries, in their nature of common-law cognizance, but arising wholly upon the sea, and not within the precincts of any county. The proceedings are herein also much conformed to the civil law.

(9.) All other injuries are cognizable only in the courts of common law: of which in the remainder of this chapter.

(10.) Two of them are, however, commissible by these and other inferior courts; viz. 1. Refusal, or neglect, of justice. Remedies: by writ of procedendo, or mandamus. 2. Encroachment of jurisdiction. Remedy: by writ of prohibition.

Sect. VIII. Of wrongs, and their remedies, respecting the rights of persons.

(1.) In treating of the cognizance of injuries by the courts of common law, may be considered, 1. The injuries themselves, and their respective remedies. 2. The pursuit of those remedies in the several courts.

(2.) Injuries between subject and subject, cognizable by the courts of common law, are in general remedied by putting the party injured into possession of that right whereof he is unjustly deprived.

(3.) This is effected, 1. By delivery of the thing detained to the rightful owner. 2. Where that remedy is either impossible or inadequate, by giving the party injured a satisfaction in damages.

(4.) The instruments, by which these remedies may be obtained, are suits or actions; which are defined to be the legal demand of one's right: and these are,

1. Personal. 2. Real. 3. Mixed.

(5.) Injuries (whereof some are with, others without force) are,

1. Injuries to the rights of persons. 2. Injuries to the rights of property. And the former are,

1. Injuries to the absolute. 2. Injuries to the relative, rights of persons.

(6.) The absolute rights of individuals are,

1. Personal security. 2. Personal liberty. 3. Private property. (See Chap. I. Sect. i.). To which the injuries must be correspondent.

(7.) Injuries to personal security are,

1. Against a man's life. 2. Against his limbs. 3. Against his body. 4. Against his health. 5. Against his reputation.—The first must be referred to the next chapter.

(8.) Injuries to the limbs and body, are,

1. Threats. 2. Assault. 3. Battery. 4. Wounding. 5. Mayhem. Remedy: by action of trespass, vi et armis; for damages.

(9.) Injuries to health, by any unwholesome practices, are remedied by a special action of trespass, on the case; for damages.

(10.) Injuries to reputation are,

1. Slanderous and malicious words. Remedy: by action on the case; for damages. 2. Libels. Remedy: the same. 3. Malicious prosecutions. Remedy: by action of conspiracy, or on the case; for damages.

(11.) The sole injury to personal liberty is false imprisonment. Remedies: 1. By writ of, 1st, Mainprize; 2dly, Odio et atia; 3dly, Homine replegando. 4thly, Habeas corpus; to remove the wrong. 2. By action of trespass; to recover damages.

(12.) For injuries to private property, see the next section.

(13.) Injuries to relative rights affect,

1. Husbands. 2. Parents. 3. Guardians. 4. Masters.

(14.) Injuries to an husband are,

1. Abduction, or taking away his wife. Remedy: by action of trespass, de usuere rapta et abducta; to recover possession of his wife, and damages. 2. Criminal conversation with her. Remedy: by action on the case; for damages. 3. Beating her. Remedy: by action on the case, per quod consortium amittit; for damages.

(15.) The only injury to a parent or guardian is the abduction of their children or wards. Remedy: by action of trespass, de filiis, vel custodiis, raptae vel abductae; to recover possession of them, and damages.

(16.) Injuries to a master are,

1. Retaining his servants. Remedy: by action on the case; for damages. 2. Beating them. Remedy: by action on the case, per quod servitium amittit; for damages.

Sect. IX. Of injuries to personal property.

(1.) Injuries to the rights of property are either to those of personal or real property.

(2.) Personal property is either in possession or in action.

(3.) Injuries to personal property in possession are,

1. By dispossession. 2. By damage, while the owner remains in possession.

(4.) Dispossession may be effected, 1. By an unlawful taking. 2. By an unlawful detaining.

(5.) For the unlawful taking of goods and chattels personal, personal, the remedy is, 1. Actual restitution, which (in case of a wrongful distress) is obtained by action of replevin, 2. Satisfaction in damages; 3. In case of replevin, by action of replevin, poundbreach, or on the case; 4. In case of other unlawful takings, by action of trespass or trover.

(6.) For the unlawful detaining of goods lawfully taken, the remedy is also, 1. Actual restitution; by action of replevin or detinue. 2. Satisfaction in damages; by action on the case, for trover and conversion.

(7.) For damage to personal property, while in the owner's possession, the remedy is in damages; by action of trespass at arm's length, in case the act be immediately injurious; or by action of trespass on the case, to redress consequential damage.

(8.) Injuries to personal property, in action, arise by breach of contract, 1. Express. 2. Implied.

(9.) Breaches of express contracts are, 1. By non-payment of debts. Remedy: 1/3, Specific payment; recoverable by action of debt. 2/3, Damages for non-payment; recoverable by action on the case. 2. By non-performance of covenants. Remedy: by action of covenant, 1/3, to recover damages, in covenants personal; 2/3, to compel performance, in covenants real. 3. By non-performance of promises, or assumpsits. Remedy: by action on the case; for damages.

(10.) Implied contracts are such as arise, 1. From the nature and constitution of government. 2. From reason and the construction of law.

(11.) Breaches of contracts, implied in the nature of government, are by the nonpayment of money which the laws have directed to be paid. Remedy: by action of debt (which, in such cases, is frequently a popular, frequently a qui tam, action); to compel the specific payment;—or, sometimes, by action on the case; for damages.

(12.) Breaches of contracts, implied in reason and construction of law, are by the nonperformance of legal presumptive assumpsits; for which the remedy is in damages; by an action on the case on the implied assumpsits, 1. Of a quantum meruit. 2. Of a quantum valebat. 3. Of money expended for another. 4. Of receiving money to another's use. 5. Of an infirm computatent, on an account stated (the remedy on an account unstated being by action of account). 6. Of performing one's duty, in any employment, with integrity, diligence, and skill. In some of which cases an action of deceit (or on the case, in nature of deceit) will lie.

Sect. X. Of injuries to real property; and, first, of dispossession, or ouster, of the freehold.

(1.) Injuries affecting real property are, 1. Ouster. 2. Trespass. 3. Nuisance. 4. Waste. 5. Subtraction. 6. Disturbance.

(2.) Ouster is the motion of possession; and is, 1. From freeholds. 2. From chattels real.

(3.) Ouster from freeholds is effected by, 1. Abatement. 2. Intrusion. 3. Diffission. 4. Discontinuance. 5. Deforcement.

(4.) Abatement is the entry of a stranger, after the death of the ancestor, before the heir.

(5.) Intrusion is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion.

(6.) Diffission is a wrongful putting out of him that is seised of the freehold.

(7.) Discontinuance is where tenant in tail, or the husband of tenant in fee, makes a larger estate of the land than the law alloweth.

(8.) Deforcement is any other detainer of the freehold from him who hath the property, but who never had the possession.

(9.) The universal remedy for all these is restitution or delivery of possession; and, sometimes, damages for the detention. This is effected, 1. By mere entry. 2. By action possessory. 3. By writ of right.

(10.) Mere entry, on lands, by him who hath the apparent right of possession, will (if peaceable) divest the mere possession of a wrongdoer. But forcible entries are remedied by immediate restitution, to be given by a justice of the peace.

(11.) Where the wrongdoer hath not only mere possession, but also an apparent right of possession, this may be divested by him who hath the actual right of possession, by means of the possessory actions of writ of entry or affisse.

(12.) A writ of entry is a real action, which disproves the title of the tenant, by showing the unlawful means under which he gained or continues possession. And it may be brought either against the wrongdoer himself, or in the degrees called the per, the per and cui, and the post.

(13.) An affisse is a real action, which proves the title of the demandant, by showing his own or his ancestor's possession. And it may be brought either to remedy abatements; viz. the affisse of mort d'ancestor, &c.; Or to remedy recent diffissions; viz. the affisse of novel diffission.

(14.) Where the wrongdoer hath gained the actual right of possession, he who hath the right of property can only be remedied by a writ of right, or some writ of a similar nature. As, 1. Where such right of possession is gained by the discontinuance of tenant in tail. Remedy, for the right of property: by writ of formedon. 2. Where gained by recovery in a possessory action, had against tenants of particular estates by their own default. Remedy: by writ of quod ei deforceat. 3. Where gained by recovery in a possessory action, had upon the merits. 4. Where gained by the statute of limitations. Remedy, in both cases: by a mere writ of right, the highest writ in the law.

Sect. XI. Of dispossession, or ouster, of chattels real.

(1.) Ouster from chattels real is, 1. From estates by statute and ejectus. 2. From an estate for years.

(2.) Ouster from estates by statute or ejectus, is effected by a kind of diffission. Remedy: restitution and damages; by affisse of novel diffission.

(3.) Ouster from an estate for years, is effected by a like diffission, or ejectment. Remedy: restitution, and damages; 1. By writ of ejectione firmae. 2. By writ of quare eject infra terminum.

(4.) A writ of ejectione firmae, or action of trespass in ejectment, lieth where lands, &c., are let for a term of years, and the lessee is ousted or ejected from his term; Law of term; in which case he shall recover possession of his England, term, and damages.

(5.) This is now the usual method of trying titles to land, instead of an action real: viz. By, 1. The claimant's making an actual (or supposed) lease upon the land to the plaintiff. 2. The plaintiff's actual (or supposed) entry thereupon. 3. His actual (or supposed) ouster and ejectment by the defendant. For which injury this action is brought either against the tenant, or (more usually) against some casual or fictitious ejector; in whose stead the tenant may be admitted defendant, on condition that the lease, entry, and ouster, be confessed, and that nothing else be disputed but the merits of the title claimed by the lessor of the plaintiff.

(6.) A writ of quare ejectum infra terminum is an action of a similar nature; only not brought against the wrongdoer or ejector himself, but such as are in possession under his title.

Sect. XII. Of trespass.

Trespass is an entry upon, and damage done to, another's lands, by one's self, or one's cattle; without any lawful authority, or cause of justification: which is called a breach of his close. Remedy: damages; by action of trespass, quare clausum fregit: besides that of distress, damage feasant. But, unless the title to the land came chiefly in question, or the trespass was wilful or malicious, the plaintiff (if the damages be under forty shillings) shall recover no more costs than damages.

Sect. XIII. Of nuisance.

(1.) Nuisance, or annoyance, is anything that worketh damage or inconvenience: and it is either a public and common nuisance, of which in the next chapter; or, a private nuisance, which is anything done to the hurt or annoyance of, 1. The corporeal; 2. The incorporeal, hereditaments of another.

(2.) The remedies for a private nuisance (besides that of abatement) are, 1. Damages; by action on the case; (which also lies for special prejudice by a public nuisance). 2. Removal thereof, and damages; by assise of nuisance. 3. Like removal, and damages; by writ of Quod permitat proferre.

Sect. XIV. Of waste.

(1.) Waste is a spoil and destruction in lands and tenements, to the injury of him who hath, 1. An immediate interest (as, by right of common) in the lands. 2. The remainder or reversion of the inheritance.

(2.) The remedies, for a commoner, are restitution, and damages; by assise of common: Or, damages only; by action on the case.

(3.) The remedy, for him in remainder, or reversion, is, 1. Preventive: by writ of estreprement at law, or injunction out of chancery; to stay waste. 2. Corrective: by action of waste; to recover the place wasted, and damages.

Sect. XV. Of subtraction.

(1.) Subtraction is when one, who owes services to another, withdraws or neglects to perform them. This may be, 1. Of rents, and other services, due by tenure. 2. Of those due by custom.

(2.) For subtraction of rents and services, due by tenure, the remedy is, 1. By distress; to compel the payment or performance. 2. By action of debt. 3. By assise. 4. By writ de confestudinibus et servitutis; to compel the payment. 5. By writ of celavuit; and, 6. By writ of right sur disclamer; to recover the land itself.

(3.) To remedy the oppression of the lord, the law has also given, 1. The writ of Ne injuste vexes: 2. The writ of mesne.

(4.) For subtraction of services, due by custom, the remedy is, 1. By writ of Selza ad molendinum, furnum, torræ, &c. to compel the performance, and recover damages. 2. By action on the case; for damages only.

Sect. XVI. Of disturbance.

(1.) Disturbance is the hindering, or disquieting, the owners of an incorporeal hereditament, in their regular and lawful enjoyment of it.

(2.) Disturbances are, 1. Of franchises. 2. Of commons. 3. Of ways. 4. Of tenure. 5. Of patronage.

(3.) Disturbance of franchises, is remedied by a special action on the case; for damages.

(4.) Disturbance of common, is, 1. Intercommoning without right. Remedy: Damages; by an action on the case; or of trespass; besides distress, damage feasant; to compel satisfaction. 2. Surcharging the common. Remedies: distress, damage feasant; to compel satisfaction: Action on the case; for damages: or, Writ of admeasurement of pasture; to apportion the common; and writ de secunda supereracione; for the supernumerary cattle, and damages. 3. Inclusion, or obliteration. Remedies: Restitution of the common, and damages; by assise of novel disseisin, and by writ of quod permitat: or, Damages only; by action on the case.

(5.) Disturbance of ways, is the obstruction, 1. Of a way in gross, by the owner of the land. 2. Of a way appendant, by a stranger. Remedy, for both: damages; by action on the case.

(6.) Disturbance of tenure, by driving away tenants, is remedied by a special action on the case; for damages.

(7.) Disturbance of patronage, is the hindrance of a patron to present his clerk to a benefice; whereof jurisdiction, within six months, is now become a species.

(8.) Disturbers may be, 1. The pseudo-patron, by his wrongful presentation. 2. His clerk, by demanding institution. 3. The ordinary, by refusing the clerk of the true patron.

(9.) The remedies are, 1. By assise of darren prejentment; 2. By writ of quare impedit;—to compel institution and recover damages: Consequent to which are the writs of quare incumbavit, and quare non admisit; for subsequent damages. 3. By writ of right of advowson; to compel institution, or establish the permanent right. Part II.

Sect. XVII. Of injuries proceeding from, or affecting, the crown.

(1.) Injuries to which the crown is a party are, 1. Where the crown is the aggressor. 2. Where the crown is the sufferer.

(2.) The crown is the aggressor, whenever it is in possession of any property to which the subject hath a right.

(3.) This is remedied, 1. By petition of right where the right is grounded on facts disclosed in the petition itself. 2. By nonjurans de droit; where the claim is grounded on facts already appearing on record. The effect of both which is to remove the hands (or possession) of the king.

(4.) Where the crown is the sufferer, the king's remedies are, 1. By such common law actions as are consistent with the royal dignity. 2. By inquest of office, to recover possession: which, when found, gives the king his right by solemn matter of record; but may afterwards be traversed by the subject. 3. By writ of scire facias, to repeal the king's patent or grant. 4. By information of infructum, to give damages for any trespasses on the lands of the crown; or of debt, to recover moneys due upon contract, or forfeited by the breach of any penal statute; or sometimes (in the latter case) by information in rem: all filed in the exchequer ex officio by the king's attorney-general. 5. By writ of quo warranto, or information in the nature of such writ; to seise into the king's hands any franchise usurped by the subject, or to oust an usurper from any public office. 6. By writ of mandamus, unless cause; to admit or restore any person entitled to a franchise or office: to which if a false cause be returned, the remedy is by traverse, or by action on the case for damages; and, in consequence, a peremptory mandamus, or writ of restitution.

Sect. XVIII. Of the pursuit of remedies by action; and, first, of the original writ.

(1.) The pursuit of the several remedies furnished by the laws of England, is, 1. By action in the courts of common law. 2. By proceedings in the courts of equity.

(2.) Of an action in the court of common pleas (originally the proper court for prosecuting civil suits) the orderly parts are, 1. The original writ. 2. The process. 3. The pleadings. 4. The issue, or demurrer. 5. The trial. 6. The judgment. 7. The proceedings in nature of appeal. 8. The execution.

(3.) The original writ is the beginning or foundation of a suit, and is either optional (called a praecipe), commanding the defendant to do something in certain, or otherwise show cause to the contrary; or peremptory called a si fecerit te securum, commanding, upon security given by the plaintiff, the defendant to appear in court, to show wherefore he hath injured the plaintiff: both issuing out of chancery under the king's great seal, and returnable in bank during term-time.

Sect. XIX. Of process.

(1.) Process is the means of compelling the defendant to appear in court.

(2.) This includes, 1. Summons. 2. The writ of attachment, or pone; which is sometimes the first or original process. 3. The writ of distringas, or distress infinite. 4. The writs of capias ad respondendum, and tellatum capitum; or, instead of these, in the king's bench, the bill of Middlesex, and writ of latitut— and, in the exchequer, the writ of quo minus. 5. The alias and pluries writs. 6. The exigent, or writ of exigat facias, proclamations, and outlawry. 7. Appearance, and common bail. 8. The arrest. 9. Special bail, first to the sheriff, and then to the action.

Sect. XX. Of pleadings.

Pleadings are the mutual altercations of the plaintiff and defendant in writing; under which are comprised, 1. The declaration or count; (wherein, incidentally, of the visne, nonsuit, retraxit, and discontinue). 2. The defence, claim of cognizance, imparlance, view, oyer, aid-prayer, voucher, or age; 3. The plea; which is either a dilatory plea (i.e., to the jurisdiction; zedly, in disability of the plaintiff; 3edly, in abatement), or it is a plea to the action; sometimes confessing the action either in whole or in part; (wherein of a tender, paying money into court, and set off): but usually denying the complaint, by pleading either, i.e., the general issue; or, zedly, a special bar (wherein of justifications, the statutes of limitation, &c.). 4. Replication, rejoinder, surrejoinder, rebutter, surrebutter, &c. Therein of estoppels, colour, duplicity, departure, new assignment, protestation, averment, and other incidents of pleading.

Sect. XXI. Of issue and demurrer.

(1.) Issue is where the parties, in a course of pleading, come to a point affirmed on one side and denied on the other; which, if it be a matter of law, is called a demurrer; if it be a matter of fact, still retains the name of an issue, of fact.

(2.) Continuance is the detaining of the parties in court from time to time, by giving them a day certain to appear upon. And, if any new matter arises since the last continuance or adjournment, the defendant may take advantage of it, even after demurrer or issue, by alleging it in a plea pui darrain continuance.

(3.) The determination of an issue in law, or demurrer, is by the opinion of the judges of the court; which is afterwards entered on record.

Sect. XXII. Of the several species of trial.

(1.) Trial is the examination of the matter of fact put in issue.

(2.) The species of trials are, 1. By the record. 2. By inspection. 3. By certificate. 4. By witness. 5. By wager of battle. 6. By wager of law. 7. By jury.

(3.) Trial by the record is had, when the existence of such record is the point in issue.

(4.) Trial by inspection or examination is had by the court, principally when the matter in issue is the evident object of the senses.

(5.) Trial by certificate is had in those cases, where such certificate must have been conclusive to a jury. (6.) Trial by *aviewoff* (the regular method in the civil law) is only used on a writ of dower, when the death of the husband is in issue.

(7.) Trial by *wager of battel*, in civil cases, is only had on a writ of right; but, in lieu thereof, the tenant may have, at his option, the trial by the *grand assize*.

(8.) Trial by *wager of law* is only had, where the matter in issue may be supposed to have been privily transacted between the parties themselves, without the intervention of other witnesses.

**Sect. XXIII. Of the trial by jury.**

(1.) Trial by *jury* is, 1. Extraordinary; as, by the grand assize, in writs of right; and by the grand jury, in writs of attain. 2. Ordinary.

(2.) The method and process of the ordinary trial by jury is, 1. The writ of *venire facias* to the sheriff, coroners, or clifors; with the subsequent compulsive process of *habeas corpora*, or *diffringas*. 2. The carrying down of the record to the court of *nisi prius*. 3. The sheriff's return; or panel of, 1st, special, 2dly, common jurors. 4. The challenges; 1st, to the array; 2dly, to the polls of the jurors; either, *propter honores respectum*, *propter defectum*, *propter affectum* (which is sometimes a principal challenge, sometimes to the favour), or *propter delictum*. 5. The *tales de circumstantibus*. 6. The oath of the jury. 7. The evidence; which is either by proofs, 1st, written; 2dly, parole;—or, by the private knowledge of the jurors. 6. The verdict; which may be, 1st, privy; 2dly, public; 3dly, special.

**Sect. XXIV. Of judgment, and its incidents**

(1.) Whatever is transacted at the trial, in the court of *nisi prius*, is added to the record under the name of a *plea*: consequent upon which is the judgment.

(2.) Judgment may be arrested or stayed for causes, 1. Extrinsic, or debars the record; as in the case of new trials. 2. Intrinsic, or within it; as where the declaration varies from the writ, or the verdict from the pleadings, and issue; or where the case, laid in the declaration, is not sufficient to support the action in point of law.

(3.) Where the issue is immaterial, or insufficient, the court may award a *repleader*.

(4.) Judgment is the sentence of the law, pronounced by the court, upon the matter contained in the record.

(5.) Judgments are, 1. Interlocutory; which are incomplete till perfected by a writ of inquiry. 2. Final.

(6.) Costs, or expenses of suit, are now the necessary consequence of obtaining judgment.

**Sect. XXV. Of proceeding, in the nature of appeals.**

(1.) Proceedings, in the nature of appeals from judgment, are, 1. A writ of *attain*; to impeach the verdict of a jury; which of late has been superseded by new trials. 2. A writ of *audita querela*; to discharge a judgment by matter that has since happened.

3. A writ of error, from one court of record to another; to correct judgments, erroneous in point of law, and not helped by the statutes of amendment and jeo-fails.

(2.) Writs of error lie, 1. To the court of king's bench, from all inferior courts of record; from the court of common-pleas at Westminster; and from the court of king's bench in Ireland. 2. To the courts of exchequer-chamber, from the law side of the court of exchequer; and from proceedings in the court of king's bench by bill. 3. To the house of peers, from proceedings in the court of king's-bench by original, and on writs of error; and from the several courts of exchequer-chamber.

**Sect. XXVI. Of execution.**

Execution is the putting in force of the sentence or judgment of the law. Which is effected,

1. Where possession of any hereditament is recovered; by writ of *habere facias seifnam, possessionem*, &c.

2. Where any thing is awarded to be done or rendered, by a special writ for that purpose; as, by writ of abatement, in case of nulance; *returna habendo*, and *capias in withernam*, in *replevin*, *diffringas* and *scire facias*, in detinue.

3. Where money only is recovered; by writ of, 1st, *capias ad satisfacendum*, against the body of the defendant; or, in default thereof, *scire facias* against his bail. 2dly, *Fieri facias*, against his goods and chattels. 3dly, *Levari facias*, against his goods and the profits of his lands. 4thly, *Elegai*, against his goods, and the *possession* of his lands. 5thly, *Extendi facias*, and other process, on statutes, recognizances, &c., against his body, lands, and goods.

**Sect. XXVII. Of proceedings in the courts of equity.**

(1.) Matters of equity which belong to the peculiar jurisdiction of the court of chancery, are, 1. The guardianship of infants. 2. The custody of idiots and lunatics. 3. The superintendence of charities. 4. Commissions of bankrupt.

(2.) The court of exchequer and the duchy-court of Lancaster, have also some peculiar causes, in which the interest of the king is more immediately concerned.

(3.) Equity is the true sense and sound interpretation of the rules of law; and, as such, is equally attended to by the judges of the courts both of common law and equity.

(4.) The essential differences, whereby the English courts of equity are distinguished from the courts of law, are, 1. The mode of proof; by a discovery on the oath of the party; which gives a jurisdiction in matters of account, and fraud. 2. The mode of trial; by depositions taken in any part of the world. 3. The mode of relief; by giving a more specific and extensive remedy than can be had in the courts of law; as, by carrying agreements into execution, staying waste or other injuries by injunction, directing the sale of incumbered lands, &c. 4. The true construction of *securities* for money, by considering them merely as a pledge. 5. The execution of *trusts*, or second titles, in a manner analogous to the law of legal estates. (5.) The proceedings in the court of chancery (to which those in the exchequer &c. very nearly conform) are, 1. Bill. 2. Writ of subpoena; and, perhaps, injunction. 3. Proceeds of contempt; viz. (ordinarily) attachment, attachment with proclamations, commission of rebellion, sequestration at arms, and sequestrations. 4. Appearance. 5. Demurrer. 6. Plea. 7. Answer. 8. Exceptions; amendments; cross or supplemental bills; bills of revivor, interpleader, &c. 9. Replication. 10. Issue. 11. Depositions, taken upon interrogatories; and subsequent publication thereof. 12. Hearing. 13. Interlocutory decree; signed issue, and trial; reference to the matter, and report; &c. 14. Final decree. 15. Rehearing, or bill of review. 16. Appeal to parliament.

CHAP. IV. Of Public Wrongs.

SECT. I. Of the nature of crimes, and their punishment.

(1.) In treating of public wrongs may be considered, 1. The general nature of crimes and punishments. 2. The persons capable of committing crimes. 3. Their several degrees of guilt. 4. The several species of crimes, and their respective punishments. 5. The means of prevention. 6. The method of punishment.

(2.) A crime, or misdemeanor, is an act committed, or omitted, in violation of a public law either forbidding or commanding it.

(3.) Crimes are distinguished from civil injuries, in that they are a breach and violation of the public rights, due to the whole community, considered as a community.

(4.) Punishments may be considered with regard to, 1. The power; 2. The end; 3. The measure;—of their infliction.

(5.) The power, or right, of inflicting human punishments for natural crimes, or such as are mala in se, was by the law of nature vested in every individual; but, by the fundamental contract of society, is now transferred to the sovereign power; in which also is vested, by the same contract, the right of punishing positive offenses, or such as are mala prohibita.

(6.) The end of human punishments is to prevent future offenses; 1. By amending the offender himself. 2. By deterring others through his example. 3. By depriving him of the power to do future mischief.

(7.) The measure of human punishments must be determined by the wisdom of the sovereign power, and not by any uniform universal rule; though that wisdom may be regulated, and assisted, by certain general, equitable, principles.

SECT. II. Of the persons capable of committing crimes.

(1.) All persons are capable of committing crimes, unless there be in them a defect of will: for, to constitute a legal crime, there must be both a vicious will, and a vicious act.

(2.) The will does not concur with the act, 1. Where there is a defect of understanding. 2. Where no will is exerted. 3. Where the act is constrained by force and violence.

(3.) A vicious will may therefore be wanting, in the cases of, 1. Infancy. 2. Idiocy, or lunacy. 3. Drunkenness; which doth not, however, excuse. 4. Misfortune. 5. Ignorance, or mistake of fact. 6. Compulsion, or necessity; which is, 1st, that of civil subjection; 2dly, that of durels per minas; 3dly, that of choosing the least pernicious of two evils, where one is unavoidable; 4thly, that of want, or hunger; which is no legitimate excuse.

(4.) The king, from his excellence and dignity, is also incapable of doing wrong.

SECT. III. Of principals and accessories.

(1.) The different degrees of guilt in criminals are, 1. As principals. 2. As accessories.

(2.) A principal in a crime is, 1. He who commits the fact. 2. He who is present at, aiding, and abetting, the commission.

(3.) An accessory is he who doth not commit the fact, nor is present at the commission; but is in some sort concerned therein, either before or after.

(4.) Accessories can only be in petit treason, and felony; in high treason, and misdemeanor, all are principals.

(5.) An accessory, before the fact, is one who, being absent when the crime is committed, hath procured, counselled, or commanded, another to commit it.

(6.) An accessory after the fact, is where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists, the felon. Such accessory is usually intitled to the benefit of clergy; where the principal, and accessory before the fact, are excluded from it.

SECT. IV. Of offenses against God and religion.

(1.) Crimes and misdemeanors cognizable by the laws of England are such as more immediately offend, 1. God, and his holy religion. 2. The law of nations. 3. The king, and his government. 4. The public, or commonwealth. 5. Individuals.

(2.) Crimes more immediately offending God and religion are, 1. Apostasy. For which the penalty is incapacity, and imprisonment. 2. Heresy. Penalty, for one species thereof: the same. 3. Offences against the established church.—Either, by reviling its ordinances. Penalties: fine; deprivation; imprisonment; forfeiture.—Or, by nonconformity to its worship: 1st, Thro' total irreligion. Penalty: fine. 2dly, Thro' protestant dissenting. Penalty: inflicted by the toleration act. 3dly, Through popery, either in professors of the popish religion, popish recusants, convict, or popish priests. Penalties: incapacity; double taxes; imprisonment; fines; forfeitures; abjuration of the realm; judgment of felony, without clergy; and judgment of high treason. 4. Blasphemy. Penalty: fine, imprisonment, and corporal punishment. 5. Profane swearing and cursing. Penalty: fine, or house of correction. 6. Witchcraft; or, at least, the pretence thereto. Penalty: imprisonment, and pillory. 7. Religious impositions. Penalty: fine, imprisonment, and cor- corporal punishment. 8. Simony. Penalties: forfeiture of double value; incapacity. 9. Sabbath-breaking. Penalty: fine. 10. Drunkenness. Penalty: fine, or stocks. 11. Lewdness. Penalties: fine; imprisonment; house of correction.

Sect. V. Of offences against the law of nations.

(1.) The law of nations is a system of rules, deducible by natural reason, and established by universal consent, to regulate the intercourse between independent states.

(2.) In England, the law of nations is adopted in its full extent, as part of the law of the land.

(3.) Offences against this law are principally incident to whole states or nations; but, when committed by private subjects, are then the objects of the municipal law.

(4.) Crimes against the law of nations, animadverted on by the laws of England, are, 1. Violation of safe-conducts. 2. Infringement of the rights of embassadors. Penalty, in both: arbitrary. 3. Piracy. Penalty: judgment of felony, without clergy.

Sect. VI. Of high treason.

(1.) Crimes and misdemeanors more peculiarly offending the king and his government are, 1. High treason. 2. Felonies injurious to the prerogative. 3. Premunire. 4. Other misprisions and contempts.

(2.) High treason may, according to the statute of Edward III., be committed, 1. By compassing or imagining the death of the king, or queen-consort, or their eldest son and heir; demonstrated by some overt act. 2. By violating the king's companion, his eldest daughter, or the wife of his eldest son. 3. By some overt act of levying war against the king in his realm. 4. By adherence to the king's enemies. 5. By counterfeiting the king's great or privy seal. 6. By counterfeiting the king's money, or importing counterfeit money. 7. By killing the chancellor, treasurer, or king's justices, in the execution of their offices.

(3.) High treasons, created by subsequent statutes, are such as relate, 1. To popish: as, the repeated defense of the pope's jurisdiction; the coming from beyond sea of a natural-born popish priest; the renouncing of allegiance, and reconciliation to the pope or other foreign power. 2. To the coinage, or other signatures of the king: as, counterfeiting (or, importing and uttering counterfeit) foreign coin, here current; forging the sign manual, privy signet, or privy seal; falsifying, &c. the current coin. 3. To the protestant succession: as, corresponding with, or remitting to, the late Pretender's sons; endeavouring to impede the succession; writing or printing, in defence of any Pretender's title, or in derogation of the act of settlement, or of the power of parliament to limit the descent of the crown.

(4.) The punishment of high treason, in males, is (generally) to be, 1. Drawn. 2. Hanged. 3. Embowelled alive. 4. Beheaded. 5. Quartered. 6. The head and quarters to be at the king's disposal. But, in treasons relating to the coin, only to be drawn, and hanged till dead. Females, in both cases, are to be drawn, and burned alive.

No 176.

Sect. VII. Of felonies injurious to the king's prerogative.

(1.) Felony is that offence which occasions the total forfeiture of lands or goods at common law; now usually also punishable with death, by hanging; unless through the benefit of clergy.

(2.) Felonies injurious to the king's prerogative (of which some are within, others without, clergy) are, 1. Such as relate to the coin: as, the wilful uttering of counterfeit money, &c.; (to which head some inferior misdemeanors affecting the coining may be also referred). 2. Conspiring or attempting to kill a privy counsellor. 3. Serving foreign states, or enlisting soldiers for foreign service. 4. Embezzling the king's armour or flores. 5. Defection from the king's armies, by land or sea.

Sect. VIII. Of praemunire.

(1.) Praemunire, in its original sense, is the offence of adhering to the temporal power of the Pope, in derogation of the regal authority. Penalty: outlawry, forfeiture, and imprisonment; which hath since been extended to some offences of a different nature.

(2.) Among these are, 1. Importing Popish trinkets. 2. Contributing to the maintenance of Popish seminaries abroad, or Popish priests in England. 3. Molesting the possessors of abbey-lands. 4. Acting as broker in an unlawful contract, for more than ten per cent. 5. Obtaining any stay of proceedings in suits for monopolies. 6. Obtaining an exclusive patent for gunpowder or arms. 7. Exertion of purveyance or pre-emption. 8. Asserting a legislative authority in both or either house of parliament. 9. Sending any subject a prisoner beyond sea. 10. Refusing the oaths of allegiance and supremacy. 11. Preaching, teaching, or advised speaking, in defence of the right of any pretender to the crown, or in derogation of the power of parliament to limit the succession. 12. Treating of other matters by the assembly of peers of Scotland, convened for electing their representatives in parliament. 15. Unwarrantable undertakings by unlawful subscriptions to public funds.

Sect. IX. Of misprisions and contempts affecting the king and government.

(1.) Misprisions and contempts are all such high offences as are under the degree of capital.

(2.) These are, 1. Negative, in concealing what ought to be revealed. 2. Positive, in committing what ought not to be done.

(3.) Negative misprisions are, 1. Misprision of treason. Penalty: forfeiture and imprisonment. 2. Misprision of felony. Penalty: fine and imprisonment. 3. Concealment of treasure trove. Penalty: fine and imprisonment.

(4.) Positive misprisions or high misdemeanors and contempts, are, 1. Mal-administration of public trusts, which includes the crime of peculation. Usual penalties: banishment; fines; imprisonment; disability. 2. Contempts against the king's prerogative. Penalty: fine, and imprisonment. 3. Contempt against his per- Sect. X. Of offences against public justice.

(1.) Crimes especially affecting the commonwealth are offences, 1. Against the public justice. 2. Against the public peace. 3. Against the public trade. 4. Against the public health. 5. Against the public police or economy.

(2.) Offences against the public justice; are, 1. Embezzling or wasting records, and perjuring others in courts of justice. Penalty: judgment of felony, usually without clergy. 2. Compelling prisoners to become approvers. Penalty: judgment of felony. 3. Obstructing the execution of process. 4. Escapes. 5. Breach of prison. 6. Refuse. Which four may (according to the circumstances) be either felonies, or misdemeanor punishable by fine and imprisonment. 7. Returning from transportation. This is felony, without clergy. 8. Taking rewards to help one to his stolen goods. Penalty: the same as for the theft. 9. Receiving stolen goods. Penalties: transportation; fine; and imprisonment.—10. Theftbote. 11. Common barterry and suing in a feigned name. 12. Maintenance. 13. Champerty. Penalty, in these four: fine, and imprisonment. 14. Compounding prosecutions on penal statutes. Penalty: fine, pillory, and disability. 15. Conspiracy; and threats of accusation in order to extort money, &c. Penalties: the villainous judgment; fine; imprisonment; pillory; whipping; transportation. 16. Perjury, and subordination thereof. Penalties: infamy; imprisonment; fine, or pillory; and, sometimes, transportation or house of correction. 17. Bribery. Penalty: fine, and imprisonment. 18. Embezzery. Penalty: infamy, fine, and imprisonment. 19. False verdict. Penalty: the judgment in attain. 20. Negligence of public officers, &c. Penalty: fine, and forfeiture of the office. 21. Oppression by magistrates. 22. Extortion of officers. Penalty, in both: imprisonment, fine, and sometimes forfeiture of the office.

Sect. XI. Of offences against the public peace.

Offences against the public peace are, 1. Riotous assemblies to the number of twelve. 2. Appearing armed, or hunting in disguise. 3. Threatening, or demanding any valuable thing, by letter.—All these are felonies, without clergy. 4. Destroying of turnpikes, &c. Penalties: whipping; imprisonment; judgment of felony, with and without clergy.—5. Affrays. 6. Riots, routs, and unlawful assemblies. 7. Turbulent petitioning. 8. Forcible entry, and detainer. Penalty, in all four: fine, and imprisonment. 9. Going unlawfully armed. Penalty: forfeiture of arms, and imprisonment. 10. Spreading false news. Penalty: fine, and imprisonment. 11. Pretended prophecies. Penalties: fine; imprisonment; and forfeiture. 12. Challenges to fight. Penalty: fine, imprisonment, and sometimes forfeiture. 13. Libels. Penalty: fine, imprisonment, and corporal punishment.

Sect. XII. Of offences against public trade.

Offences against the public trade, are, 1. Owling. Penalties: fines; forfeiture; imprisonment; loss of left hand; transportation; judgment of felony. 2. Smuggling. Penalties: fines; loss of goods; judgment of felony, without clergy. 3. Fraudulent bankruptcy. Penalty: judgment of felony without clergy. 5. Usury. Penalty: fine, and imprisonment. 5. Cheating. Penalties: fine; imprisonment; pillory; tumbrel; whipping, or other corporal punishment, transportation.—6. Forefaling. 7. Rerating. 8. Engroffing. Penalties, for all three: loss of goods; fine; imprisonment; pillory. 9. Monopolies, and combinations to raise the price of commodities. Penalties: fines; imprisonment; pillory; loss of ear; infamy; and, sometimes, the pains of premunire. 10. Exercising a trade, not having served as an apprentice. Penalty: fine. 11. Transporting, or residing abroad, of artificers. Penalties: fine; imprisonment; forfeiture; incapacity; becoming aliens.

Sect. XIII. Of offences against the public health, and public police or economy.

(1.) Offences against the public health are, 1. Irregularity, in the time of the plague, or of quarantine. Penalties: whipping; judgment of felony, with and without clergy. 2. Selling unwholesome provisions. Penalties: amercement; pillory; fine; imprisonment; abjuration of the town.

(2.) Offences against the public police and economy or domestic order of the kingdom, are, 1. Those relating to clandestine and irregular marriages. Penalties: judgment of felony, with and without clergy. 2. Bigamy, or (more properly) polygamy. Penalty: judgment of felony.—3. Wandering, by soldiers or mariners. 4. Remaining in England, by Egyptians; or being in their fellowship one month. Both these are felonies, without clergy. 5. Common nuisances, 1/8, by annoyances or purprestures in highways, bridges, and rivers; zally, by offensive trades and manufactures; 3dly, by disorderly houses; 4dly, by lotteries; 5dly, by cottages; 6dly, by fireworks; 7dly, by evedropping. Penalty, in all; fine.—8dly, By common scolding. Penalty: the cucking stool. 6. Idleness, disorder, vagrancy, and incorrigible rogery. Penalties: imprisonment; whipping; judgment of felony. 7. Luxury, in diet. Penalty, discretionary. 8. Gaming. Penalties: to gentlemen, fines; to others, fine and imprisonment; to cheating gamesters, fine, infamy, and the corporal pains of perjury. 9. Destroying the game. Penalties: fines, and corporal punishment.

Sect. XIV. Of homicide.

(1.) Crimes especially affecting individuals are, 1. Against their persons. 2. Against their habitations. 3. Against their property.

(2.) Crimes against the persons of individuals, are, 1. By homicide, or destroying life. 2. By other corporal injuries. (3.) Homicide is, 1. Justifiable. 2. Excusable. 3. Felonious.

(4.) Homicide is justifiable, 1. By necessity, and command of law. 2. By permission of law; i.e., for the furtherance of public justice; zly, for prevention of some forcible felony.

(5.) Homicide is excusable. 1. Per infortunium, or by mis-adventure. 2. Se defendendo, or in self-defence, by chance-medley. Penalty, in both: forfeiture of goods; which however is pardoned of course.

(6.) Felonious homicide is the killing of a human creature without justification or excuse. This is, 1. Killing one's self. 2. Killing another.

(7.) Killing one's self or self-murder, is where one deliberately, or by any unlawful malicious act, puts an end to his own life. This is felony; punished by ignominious burial, and forfeiture of goods and chattels.

(8.) Killing another is, 1. Manslaughter. 2. Murder.

(9.) Manslaughter is the unlawful killing of another, without malice, express or implied. This is either, 1. Voluntary, upon a sudden heat. 2. Involuntary, in the commission of some unlawful act. Both are felony, but within clergy; except in the case of stabbing.

(10.) Murder is when a person, of sound memory and discretion, unlawfully killeth any reasonable creature, in being, and under the king's peace; with malice aforethought, either express or implied. This is felony, without clergy; punished with speedy death, and hanging in chains, or dissection.

(11.) Petit treason (being an aggravated degree of murder) is where the servant kills his master, the wife her husband, or the ecclesiastic his superior. Penalty: in men, to be drawn and hanged; in women, to be drawn and burned.

Sect. XV. Of offences against the persons of individuals.

Crimes affecting the persons of individuals, by other corporal injuries not amounting to homicide, are,

1. Mayhem; and also shooting at another. Penalties: fine; imprisonment; judgment of felony, without clergy. 2. Forcible abduction, and marriage or defilement, of an heiress; which is felony: also, flealing, and deflowering or marrying any woman-child under the age of sixteen years; for which the penalty is imprisonment, fine, and temporary forfeiture of her lands. 3. Rape, and also carnal knowledge, of a woman child under the age of ten years. 4. Buggery, with man or beast. Both these are felonies, without clergy.—5. Assault. 6. Battery; especially of clergymen. 7. Wounding. Penalties, in all three: fine; imprisonment; and other corporal punishment. 8. False imprisonment. Penalties: fine; imprisonment; and (in some atrocious cases) the pains of premunire, and incapacity of office or pardon. 9. Kidnapping, or forcibly flealing away the king's subjects. Penalty: fine; imprisonment; and pillory.

Sect. XVI. Of offences against the habitations of individuals.

(1.) Crimes, affecting the habitations of individuals are, 1. Arson. 2. Burglary.

(2.) Arson is the malicious and wilful burning of the house, or out-house, of another man. This is felony; in some cases within, in others without, clergy.

(3.) Burglary is the breaking and entering, by night, into a mansion-house; with intent to commit a felony. This is felony, without clergy.

Sect. XVII. Of offences against private property.

(1.) Crimes affecting the private property of individuals are, 1. Larceny. 2. Malicious mischief. 3. Forgery.

(2.) Larceny is, 1. Simple. 2. Mixed, or compound.

(3.) Simple larceny is the felonious taking, and carrying away, of the personal goods of another. And it is, 1. Grand larceny; being above the value of twelve pence. Which is felony; in some cases within, in others without, clergy. 2. Petit larceny; to the value of twelve pence or under. Which is also felony, but not capital; being punished with whipping, or transportation.

(4.) Mixed, or compound, larceny is that wherein the taking is accompanied with the aggravation of being, 1. From the house. 2. From the person.

(5.) Larcenies from the house, by day or night, are felonies without clergy, when they are, 1. Larcenies, above twelve pence, from a church; or by breaking a tent or booth in a market or fair, by day or night, the owner or his family being therein;—or by breaking a dwelling-house by day, any person being therein;—or from a dwelling-house by day, without breaking, any person therein being put in fear;—or from a dwelling-house by night, without breaking, the owner, or his family being therein and put in fear. 2. Larcenies, of five shillings, by breaking the dwelling-house, shop, or warehouse by day, though no person be therein;—or, by privately stealing in any shop, warehouse, coach-house, or stable, by day or night, without breaking, and though no person be therein. 3. Larcenies, of forty shillings, from a dwelling-house or its out-houses, without breaking, and though no person be therein.

(6.) Larceny from the person is, 1. By privately flealing, from the person of another, above the value of twelve pence. 2. By robbery; or the felonious and forcible taking, from the person of another, in or near the highway, goods or money of any value, by putting him in fear. These are both felonies without clergy. An attempt to rob is also felony.

(7.) Malicious mischief, by destroying dikes, goods, cattle, ships, garments, fish-ponds, trees, woods, churches, chapels, meeting-houses, houses, out houses, corn, hay, straw, sea or river banks, hop-binds, coal-mines (or engines thereunto belonging), or any fences for inclosures by act of parliament, is felony; and, in most cases, without benefit of clergy.

(8.) Forgery is the fraudulent making or alteration of a writing, in prejudice of another's right. Penalties: fine; imprisonment; pillory; loss of nose and ears; forfeiture; judgment of felony, without clergy. Part II.

Law of England epitomized.

Sect. XVIII. Of the means of preventing offences.

(1.) Crimes and misdemeanors may be prevented, by compelling suspected persons to give security; which is effected by binding them in a conditional recognizance to the king, taken in court, or by a magistrate.

(2.) These recognizances may be conditioned, 1. To keep the peace. 2. To be of good behaviour.

(3.) They may be taken by any justice or conservator of the peace, at his own discretion; or, at the request of such as are entitled to demand the same.

(4.) All persons, who have given sufficient cause to apprehend an intended breach of the peace, may be bound over to keep the peace; and all those, that be not of good fame, may be bound to the good behaviour; and may, upon refusal in either case, be committed to gaol.

Sect. XIX. Of courts of criminal jurisdiction.

(1.) In the method of punishment may be considered, 1. The several courts of criminal jurisdiction. 2. The several proceedings therein.

(2.) The criminal courts are, 1. Those of a public and general jurisdiction throughout the realm. 2. Those of a private and special jurisdiction.

(3.) Public criminal courts are, 1. The high court of parliament; which proceeds by impeachment. 2. The court of the lord high steward; and the court of the king in full parliament; for the trial of capitally indicted peers. 3. The court of king's bench. 4. The court of chivalry. 5. The court of admiralty, under the king's commission. 6. The courts of oyer and terminer, and general gaol-delivery. 7. The court of quarter-sessions of the peace. 8. The sheriff's tourn. 9. The court leet. 10. The court of the coroner. 11. The court of the clerk of the market.

(4.) Private criminal courts are, 1. The court of the lord steward, &c. by statute of Henry VII. 2. The court of the lord steward, &c. by statute of Henry VIII. 3. The university courts.

Sect. XX. Of summary convictions.

(1.) Proceedings in criminal courts are, 1. Summary. 2. Regular.

(2.) Summary proceedings are such, whereby a man may be convicted of divers offences, without any formal process or jury, at the discretion of the judge or judges appointed by act of parliament, or common law.

(3.) Such are, 1. Trials of offences and frauds against the laws of excise and other branches of the king's revenue. 2. Convictions before justices of the peace upon a variety of minute offences, chiefly against the public police. 3. Attachments for contempts to the superior courts of justice.

Sect. XXI. Of arrests.

(1.) Regular proceedings in the courts of common law, are, 1. Arrest. 2. Commitment and bail. 3. Prosecution. 4. Process. 5. Arraignment, and its incidents. 6. Plea and issue. 7. Trial and conviction. 8. Clergy. 9. Judgment, and its consequences. 10. Reversal of judgment. 11. Reprieve or pardon. 12. Execution.

(2.) An arrest is the apprehending, or restraining, of one's person; in order to be forthcoming to answer a crime whereof one is accused or suspected.

(3.) This may be done, 1. By warrant. 2. By an officer, without warrant. 3. By a private person, without warrant. 4. By hue and cry.

Sect. XXII. Of commitment and bail.

(1.) Commitment is the confinement of one's person in prison, for safe custody, by warrant from proper authority; unless, in bailable offences, he puts in sufficient bail, or security for his future appearance.

(2.) The magistrate is bound to take reasonable bail, if offered; unless the offender be not bailable.

(3.) Such are, 1. Persons accused of treason; or, 2. Of murder; or, 3. Of manslaughter, by indictment; or if the prisoner was clearly the slayer. 4. Prison-breakers, when committed for felony. 5. Outlaws. 6. Those who have absconded the realm. 7. Approvers, and appellants. 8. Persons taken with the mainour. 9. Persons accused of arson. 10. Excommunicated persons.

(4.) The magistrate may, at his discretion, admit to bail, or otherwise, persons not of good fame, charged with other felonies, whether as principals or as accessories.

(5.) If they be of good fame, he is bound to admit them to bail.

(6.) The court of king's bench, or its judges in time of vacation, may bail in any case whatsoever.

Sect. XXIII. Of the several modes of prosecution.

(1.) Prosecution, or the manner of accusing offenders, is either by a previous finding of a grand jury; as, 1. By presentment. 2. By indictment. Or, without such finding. 3. By information. 4. By appeal.

(2.) A presentment is the notice taken by a grand jury of any offence, from their own knowledge or observation.

(3.) An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented on oath by, a grand jury; expressing, with sufficient certainty, the person, time, place, and offence.

(4.) An information is, 1. At the suit of the king and a subject, upon penal statutes. 4. At the suit of the king only. Either, 1. Filed by the attorney-general ex officio, for such misdemeanors as affect the king's person or government; or, 2. Filed by the master of the crown-office (with leave of the court of king's bench) at the relation of some private subject, for other grofs and notorious misdemeanors. All differing fering from indictments in this; that they are exhibited by the informer, or the king's officer; and not on the oath of a grand jury.

(5.) An appeal is an accusation or suit, brought by one private subject against another, for larceny, rape, mayhem, arson, or homicide; which the king cannot discharge or pardon, but the party alone can release.

Sect. XXIV. Of process upon an indictment.

(1.) Process to bring in an offender, when indicted in his absence, is, in misdemeanors, by venire facias, distresses infinite, and capias; in capital crimes, by capias only; and, in both, by outlawry.

(2.) During this stage of proceedings, the indictment may be removed into the court of king's bench from any inferior jurisdiction, by writ of certiorari facias; and cognizance must be claimed in places of exclusive jurisdiction.

Sect. XXV. Of arraignment, and its incidents.

(1.) Arraignment is the calling of the prisoner to the bar of the court, to answer the matter of the indictment.

(2.) Incident hereunto are, 1. The standing mute of the prisoner; for which, in petit treason, and felonies of death, he shall undergo the peine forte et dure. 2. His confession; which is either simple, or by way of approvement.

Sect. XXVI. Of plea, and issue.

(1.) The plea, or defensive matter alleged by the prisoner, may be, 1. A plea to the jurisdiction. 2. A demurrer in point of law. 3. A plea in abatement. 4. A special plea in bar; which is, n't, Auteurits acquit; z'dly, Auteurits convict; 3'dly, Auteurits attain; 4'thly, A pardon. 5. The general issue, not guilty.

(2.) Hereupon issue is joined by the clerk of the arraigns, on behalf of the king.

Sect. XXVII. Of trial, and conviction.

(1.) Trials of offences, by the laws of England, were and are, 1. By ordeal, of either fire or water. 2. By the coroner. Both these have been long abolished. 3. By battel, in appeals and improvements. 4. By the peers of Great Britain. 5. By jury.

(2.) The method and proofs of trial by jury is, 1. The impanelling of the jury. 2. Challenges; n't, for cause; z'dly, peremptory. 3. Tales de circumstantibus. 4. The oath of the jury. 5. The evidence. 6. The verdict, either general or special.

(3.) Conviction is when the prisoner pleads, or is found guilty; whereupon, in felonies, the prosecutor is intitled to, 1. His expenses. 2. Restitution of his goods.

Sect. XXVIII. Of the benefit of clergy.

(1.) Clergy, or the benefit thereof, was originally derived from the usurped jurisdiction of the Popish ecclesiastics; but hath since been new-modelled by several statutes.

(2.) It is an exemption of the clergy from any other secular punishment for felony, than imprisonment for a year, at the court's discretion; and it is extended likewise, absolutely, to lay peers, for the first offence; and to all lay-commoners, for the first offence also, upon condition of branding, imprisonment, or transportation.

(3.) All felonies are intitled to the benefit of clergy, except such as are now ousted by particular statutes.

(4.) Felons, on receiving the benefit of clergy, (though they forfeit their goods to the crown), are discharged of all clergyable felonies before committed, and restored in all capacities and credits.

Sect. XXIX. Of judgment, and its consequences.

(1.) Judgment (unless any matter be offered in arrest thereof) follows upon conviction; being the pronouncing of that punishment which is expressly ordained by law.

(2.) Attainder of a criminal is the immediate consequence, 1. Of having judgment of death pronounced upon him. 2. Of outlawry for a capital offence.

(3.) The consequences of attainder are, 1. Forfeiture to the king. 2. Corruption of blood.

(4.) Forfeiture to the king, is, 1. Of real estates, upon attainder;—in high treason, absolutely, till the death of the late Pretender's sons;—in felonies, for the king's year, day, and waite;—in misprision of treason, assaults on a judge, or battery sitting the courts; during the life of the offender. 2. Of personal estates, upon conviction; in all treason, misprision of treason, felony, excusable homicide, petit larceny, standing mute upon arraignment, the above-named contempts of the king's courts, and flight.

(5.) Corruption of blood is an utter extinction of all inheritable quality therein: so that, after the king's forfeiture is first satisfied, the criminal's lands escheat to the lord of the fee; and he can never afterwards inherit, be inherited, or have any inheritance derived through him.

Sect. XXX. Of reversal of judgment.

(1.) Judgments, and their consequences, may be avoided, 1. By falsifying, or reversing, the attainder. 2. By reprieve, or pardon.

(2.) Attainders may be falsified, or reversed. 1. Without a writ of error; for matter debors the record. 2. By writ of error; for mistakes in the judgment, or record. 3. By act of parliament; for favour.

(3.) When an entlatory is reversed, the party is restored to the same plight as if he had appeared upon the capias. When a judgment, on conviction, is reversed, the party stands as if never accused.

Sect. XXXI. Of reprieve, and pardon.

(1.) A reprieve is a temporary suspension of the judgment, 1. Ex arbitrio judicis. 2. Ex necessitate legis; for pregnancy, insanity, or the trial of identity of person, which must always be tried inlantem. (2.) A pardon is a permanent avoidance of the judgment by the king's majesty, in offenses against his crown and dignity; drawn in due form of law, allowed in open court, and thereby making the offender a new man.

(3.) The king cannot pardon, 1. Imprisonment of the subject beyond the seas. 2. Offenses prosecuted by appeal. 3. Common nuisances. 4. Offenses against popular or penal statutes, after information brought by a subject. Nor is his pardon pleadable to an impeachment by the commons in parliament.

PART III. THE LAW OF SCOTLAND.

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 concerned this part of the united kingdom.

3. The remains of our ancient written law were published by Sir John Skene clerk register, in the beginning of the last century, by licence of parliament. The books of Regiam Majestatem, to which the whole collection owes its title, seem to be a system of Scots law, written by a private lawyer at the command of David I.; and though no express confirmation of that 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 laws, 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 depend upon matter of right, which declare what the judges apprehend to be the law of Scotland, and what they are to observe afterwards as a rule of judgment.

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

6. Our unwritten or customary law, is that which, Customary without being expressly enacted by statute, derives its force from the tacit consent of king and people; which consent is presumed from the ancient custom of the community. Custom, as it is equally founded in the will of the lawgiver with written law, has therefore the same effects: hence, as one statute may be explained or repealed by another, so a statute may be explained by the uniform practice of the community, and even go into disuse by a posterior contrary custom. But this power of custom to derogate from prior statutes is generally confined by lawyers to statutes concerning private right, and does not extend to those which regard public policy.

7. An uniform tract of the judgments or decisions of the court of session is commonly considered as part of the session 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 reach farther than to the parties in the house of appeal, since in these the peers act as judges, not as peers' lawgivers.

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

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

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

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

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

15. The objects of the laws of Scotland, according to Mr Erskine, one of the latest writers on the subject, are, Persons, Things, and Actions.

CHAP. I. Of Persons.

Among persons, judges, who are invested with jurisdiction, deserve the first consideration.

Sect. I. Of jurisdiction and judges in general.

Jurisdiction is a power conferred upon a judge or magistrate, to take cognisance of and decide causes according to law, and to carry his sentences into execution. That tract of ground, or district, within which a judge has the right of jurisdiction, is called his territory: and every act of jurisdiction exercised by a judge without his territory, either by pronouncing sentence, or carrying it into execution, is null.

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

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

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

5. Jurisdiction is either privative or cumulative. Privative jurisdiction, is that which belongs only to one court, to the exclusion of all others. Cumulative, otherwise called concurrent, is that which may be exercised by any one of two or more courts, in the same cause. In civil cumulative jurisdiction, the private pursuer has the right of election before which of the courts he shall sue; but as, in criminal questions which are prosecuted by a public officer of court, a collision of jurisdiction might happen, through each of the judges claiming the exercise of their right, that judge, by whose warrant the delinquent is first cited or apprehended (which is the first step of jurisdiction), acquires thereby (jure praesentationis) 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 refused 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 40 days founds jurisdiction. If one has no fixed dwelling-place, e.g., a soldier, or a travelling merchant, a personal citation against him within the territory is sufficient to found the judge's jurisdiction over him, even in civil questions. As the defender is not obliged to appear before a court to which he is not subject, the pursuer must follow the defender's domicile.

9. It is founded, 2. Ratione rei sitae, if the subject in question lie within the territory. If that subject be immoveable, 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 juridictionis fundande causae; 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 of strangers 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 satis; and even the persons of citizens or natives may be secured, where there is just reason to suspect that they are in meditazione fugae, i.e., that they intend suddenly to withdraw from the kingdom; upon which suspicion, the creditor who applies for the warrant must make oath. An inhabitant of a borough-royal, who has furnished one who lives without the borough in meat, clothes, or other merchandise, and who has no security for it but his own account-book, may arrest his debtor, till he give security judicio satis.

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 suspecti judicis; where either the judge himself, or his near kinsman, has an interest in the suit. No judge can vote in the cause of his father, brother, or son, either by consanguinity or affinity; nor in the cause of his uncle or nephew by consanguinity. 3. Ratione privilegi; where the party is by privilege exempted from their jurisdiction.

13. Prorogated jurisdiction (juridictio in consentien· prorogata· te) is that which is, by the consent of parties, conferred upon a judge, who, without such consent, would be incompetent. Where a judge is incompetent, every step he takes must be null, till his jurisdiction be made competent by the party's actual submission to it. It is otherwise where the judge is competent, but may be declined by the party upon privilege.

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

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

16. A party who has either properly declined the jurisdiction of the judge before whom he had been cited, or who thinks himself aggrieved by any proceed- ings 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 advocation, are incompetency and iniquity. Under incompetency, is comprehended not only defect of jurisdiction, but all the grounds of declining a jurisdiction, in itself competent, arising either from suspicion of the judge, or privilege in the parties. A judge is said to commit iniquity, when he either delays justice, or pronounces sentence, in the exercise of his jurisdiction, contrary to law.

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

Sect. II. 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 become our court of the last resort, to which appeals lie from all the supreme courts of Scotland; but that court has no original jurisdiction in civil matters, in which they judge only upon appeal. By art. 22. of that treaty, the Scots share of the representation in the house of peers is fixed to 16 Scots peers elective; and in the house of commons, to 45 commoners, of which 30 are elected by the freeholders of counties, and 15 by the royal boroughs. The Scots privy council was also thereupon abolished, and sunk into that of Great Britain, which for the future is declared to have no other powers than the English privy council had at the time of the union.

4. A court was erected in 1425, consisting of certain persons to be named by the king, out of the three estates of parliament, which was vested with the jurisdiction formerly lodged in the council, and got the name of the session, because it was ordained to hold annually a certain number of sessions at the places to be specially appointed by the king. This court had a jurisdiction, cumulative with the judge ordinary, in spuizies, and other possessory actions, and in debts; but they had no cognizance in questions of property of heritable subjects. No appeal lay from its judgments to the parliament. The judges of this court served by rotation, and were changed from time to time, after having sat 40 days; and became so negligent in the administration of justice, that it was at last thought necessary to transfer the jurisdiction of this court to a council to be named by the king, called the daily council.

5. The present model of the court of session, or college of justice, was formed in the reign of James V. The judges thereof, who were vested with an universal civil jurisdiction, consisted originally of seven churchmen, seven laymen, and a president, whom it behoved to be a prelate; but spiritual judges were in 1584 partly, and in 1640 totally, prohibited. The judge Judges of session have been always received by warrants from whom not the crown. Anciently his majesty seems to have transferred to the court itself the right of choosing their own president; and in a fedeunt recorded June 26, 1593, the king condescended to present to the lords, upon every vacancy in the bench, a list of three persons, out of which they were to choose one. But his majesty soon refused the exercise of both rights, which continued with the crown till the usurpation; when it was ordained, that the king should name the judges of the session, by the advice of parliament. After the restoration, the nomination was again declared to be solely in the sovereign.

6. Though judges may, in the general case, be named at the age of 21 years, the lords of session must be at least 25. No person can be named lord of session, who has not served as an advocate or principal clerk of session for five years, or as a writer to the signet for ten: and in the case of a writer to the signet, he must undergo the ordinary trials upon the Roman law, and be found qualified two years before he can be named. Upon a vacancy in the bench, the king presents the successor by a letter addressed to the lords, wherein he requires them to try and admit the person presented. The powers given to them to reject the pretence upon trial are taken away, and a bare liberty to remonstrate substituted in its place.

7. Besides the 15 ordinary judges, the king was allowed to name three or four lords of his great council, who might sit and vote with them. These extraordinary lords were suppressed in the reign of Geo. I.

8. The appellation of the college of justice is not confined to the judges, who are distinguished by the name of senators; but comprehends advocates, clerks of session, writers to the signet, and others, as described.

Act S. 23d Feb. 1687. Where, therefore, the college of justice is intitled to any privilege, it extends to all the members of the college. They are excepted from watching, warding, and other services within borough; and from the payment of ministers stipends, and of all customs, &c. imposed upon goods carried to or from the city of Edinburgh. Part of these privileges and immunities were lately called in question by the city of Edinburgh; but they were found by the court of session (affirmed upon appeal) to be in full force.

9. Though the jurisdiction of the session be properly limited to civil causes, the judges have always sustained the jurisdiction of the session as competent to the crime of falsehood. Where the falsehood deserves death or demembration, they, after finding the crime proved, remit the criminal to the court of judicary. Special statute has given to the court of session jurisdiction in contraventions of law-burrows, defacements, and breach of arrestment; and they have been in use to judge in battery pendente lite, and in utury.

10. In certain civil causes, the jurisdiction of the session is exclusive of all inferior jurisdictions; as in declarators of property, and other competitions of heritable table. The circuit-court can also judge in all criminal causes which do not infer death or demembration, upon appeal from any inferior court within their district; and has a supreme civil jurisdiction, by way of appeal, in all causes not exceeding twelve pounds Sterling, in which their decrees are not subject to review; but no appeal is to lie to the circuit, till the cause be finally determined in the inferior court.

15. The court of exchequer, as the King's chamberlain court, judged in all questions of the revenue. In exchequer, pursuant 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 tho' all these must pass in exchequer, it is the court of session only who can judge of their preference after they are completed.

16. The jurisdiction of the admiral in maritime causes was of old concurrent with that of the session court. The high-admiral is declared the king's justice general upon the seas, on fresh water within flood-mark, and in all harbours and creeks. His civil jurisdiction extends to all maritime causes; and so comprehends questions of charter-parties, freights, salvages, bottomries, &c. He exercises this supreme jurisdiction by a delegate, the judge of the high court of admiralty; and he may also name inferior deputies, whose jurisdiction is limited to particular districts, and whose sentences are subject to the review of the high court. In causes which are declared to fall under the admiral's cognizance, his jurisdiction is sole; in so much, that the session itself, though it may review his decrees by suspension or reduction, cannot carry a maritime question from him by 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.

17. All our supreme courts have seals or signets, proper to their several jurisdictions. The courts of session and judiciary 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 judiciary 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 dili-

Law of Scotland. gence, and generally whatever passes by the warrant of the session, and is to be executed by the officers of the court. All these must, before sealing, be signed by the writers or clerks of the signet: But letters of diligence, where they are granted in a depending process, merely for probation, though they pass by the signet, must be subscribed by a clerk of session. The clerks of the signet also prepare and subscribe all signatures of charters, or other royal grants, which pass in exchequer.

Sect. III. Of the inferior judges and courts of Scotland.

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, spoliation, &c.; to all briefs issuing from the chancery, as of inquest, terce, division, tutor, &c.; and even to adjudications of land estates, when proceeding on the renunciation of the apparent heir. His present criminal jurisdiction extends to certain capital crimes, as theft, and even murder, though it be one of the pleas of the crown; and he is competent to most questions of public police, and has a cumulative jurisdiction with justices of the peace in all riots and breaches of the peace.

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

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 replead 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 effect of all denounced persons residing within his jurisdiction, even though such privilege had not been expressed in the grant of regality.

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

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 bailies, and all such heritable sheriffships 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 sheriffships and stewartries that were no part of a shire, where they had been granted, either heritably or for life, are resumed and annexed to the crown. No high sheriff or steward can hereafter judge personally in any cause. One sheriff or steward-depute is to be appointed by the king in every shire, who must be an advocate of three years standing; and whose office as sheriff or steward-depute is now by 28 Geo. II. held ad vitam aut culpam.

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

9. Justices of the peace are magistrates named by the sovereign over the several counties of the kingdom, for the special purpose of preserving the public peace. Anciently their power reached little farther than to bind over disorderly persons for their appearance before the privy council or justiciary; afterwards they were authorized 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 matters in the wages due to their servants. They have power to judge in questions of highways, and to call out the tenants with their cottars and servants to perform six days' work yearly for upholding them. It has been lately, however, found by the court of session, that justices have no jurisdiction whatever in common actions for debt. So that it now seems fixed, that they are incompetent in such actions, except where they are declared competent by special statute.

10. Since the union, our justices of the peace, over and above the powers committed to them by the laws of Scotland, are authorized to exercise whatever belonged to the office of an English justice, in relation to the public peace. From that time, the Scots and the English commissions have run in the same style, which contain powers to inquire into and judge in all capital crimes, witchcrafts, felonies, and several others specially enumerated; with this limitation subjoined, of which justices of the peace may lawfully inquire. Two justices can constitute a court. Special statute has given the cognizance of several matters of excise to the justices, in which their sentences are final. As to which, and the powers thereby vested in them, the reader must of necessity be referred to the excise laws; it not falling within the plan of this work, to enter into so very minute a detail as that would prove.

11. A borough is a body-corporate, made up of the inhabitants of a certain tract of ground created by the sovereign, with jurisdiction annexed to it. Boroughs roughs 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 police between the inhabitants. Their criminal jurisdiction extends to petty riots, and reckless fire-raising. The dean of guild is that magistrate of a royal borough who is head of the merchant-company; he has the cognizance of mercantile causes within borough; and the inspection of buildings, that they encroach neither on private property, nor on the public streets; and he may direct insufficient houses to be pulled down. His jurisdiction has no dependence on the court of the borough, or bailie-court.

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 infinitely 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 liberum 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 40l. Sterling. His criminal jurisdiction is, by the same statute, limited to assaults, batteries, and other minor offences, which may be punished by a fine not exceeding 20l. Sterling, or by setting the offender in the stocks in the daytime not above three hours; the fine to be levied by poinding, or one month's imprisonment. The jurisdiction formerly competent to proprietors of mines, and coal or salt works, over their workmen, is reserved; and also that which was competent to proprietors who had the right of fairs or markets, for correcting the disorders that might happen during their continuance; provided they shall exercise no jurisdiction inferring the loss of life or demerit.

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

16. The office of the Lyon King of arms was chiefly ministerial, to denounce war, proclaim peace, carry at arms, 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. They must find caution for the proper discharge of their duty qua messengers; and in case of any malversation, or neglect, by whom damage arises to their employers, their sureties may be required upon for indemnification. These sureties, however, are not answerable for the conduct of the messenger in any other capacity but qua such; and therefore, if a messenger is authorized to uplift payment from a debtor, and fails to account to his employer, the cautioner is not liable; his obligation extending only to the regular and proper duties of the office in executing the diligence, or the like.

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

Sect. V. 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, 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-office. 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 afterwards during the vacancy. The Pope alone could give the higher benefices in commendam; and at last, from the plenitude of his power, he came to name commendators for life, and without any obligation. gation to account. After the reformation, several ab- bacies and priories were given by James VI. in perpe- tuam commendam, to laics.

3. Upon abolishing the Pope's authority, the regular clergy were totally suppressed; and, in place of all the different degrees which distinguished the secular cler- gy, we had at first only parochial presbyters or min- isters, and superintendents, who had the oversight of the church within a certain district: soon thereafter the church-government became episcopal by archbi- shops, bishops, &c.; and after some intermediate turns, is now presbyterian by kirk-selections, presbyteries, sy- nods, and general assemblies.

4. Prelate, in our statutes, signifies a bishop, abbot, or other dignified clergyman, who in virtue of his of- fice 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 man- aged the affairs of the church within that district. The nomination of bishops to vacant sees has been in the crown since 1549, though under the appearance of continuing the ancient right of election, which was in the chapter. The confirmation by the crown under the great seal, of the chapter's election, conferred a right to the spirituality of the benefice; and a second grant, upon the consecration of the bishop-elect, gave a title to the temporality; but this second grant fell soon in- to disuse.

Patronage.

5. He who founded or endowed a church was in- titled 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 show a special title; and, since the reformation, the crown, as coming in place of the Pope, is considered as universal patron, where no right of patronage appears in a subject. Where two churches are united, which had different patrons, each patron presents by turns.

6. Gentlemen of estates frequently founded colleges or collegiate churches; the head of which got the name of provost, under whom were certain prebendaries, or canons, who had their several stalls in the church, where they sung masses. Others of lesser fortunes founded chaplainries, which were donations granted for the singing of masses for deceased friends at particular al- ters in a church. Though all these were suppressed upon the reformation, their founders continued pa- trons of the endowments; out of which they were al- lowed 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 re- served to himself the right of patronage in the dona- tion, 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 in- cumbents 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 presentation sold in pursuance of the former act.

8. Patrons were not simply administrators of the Patron 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 va- cant 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. Pa- trons are to this day entitled 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 dis- posed.

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, other- wise the right of presentation accrues to the presbytery jure devoluto. Upon presentation by the patron, the bishop collated or conferred the benefice upon the pre- sentee by a writing, in which he appointed certain mi- nisters 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 de- livering to him the bible and keys of the church. The bishop collated to the churches of which himself was patron, pleno jure, or without presentation; which he also did in mensal churches, whose patronages were funk, by the churches being appropriated to him, as part of his patrimony. Since the revolution, a judicial act of admission by the presbytery, proceeding either upon a presentation, or upon a call from the heirs and elders, or upon their own jus devolutum, completes the minister's right to the benefice.

10. Soon after the reformation, the Popish church- men were prevailed upon to resign in the sovereign's hands a third of their benefices; which was appropri- ated, in the first place, for the subsistence of the reform- ed clergy. To make this fund effectual, particular lo- calities 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 main- tain 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 accepta- tion thereof, to provide the kirks within their erec- tions in competent stipends.

11. But all those expedients for the maintenance of Com- mission of the clergy having proved ineffectual, a commission of for parliament was appointed in the reign of James VI., planting kirks, va- for planting kirks, and modifying stipends to ministers ling out of the teinds; and afterwards several other com- missions 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 intitled to relief against the rest for what he shall have paid above his just share; but where the stipend is also localised, each heritor is liable in no more than his own proportion.

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 manes in feu, or in long tacks; ministers therefore got a right, in 1563, to as much of these manes 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 in good condition; for which purpose, the presbytery may appoint a visitation by tradesmen, and order estimates to be laid before them of the sums necessary for the repairing, which they may proportion among the heritors according to their valuations. The presbytery, after the manse is made 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 fifteen fowms of pasture-ground where there is no arable land (a fown is what will graze ten sheep or one cow); and it is to be designed or marked by the bishop or presbytery out of such kirkslands within the parish as lie nearest to the kirk, and, in default of kirks-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. Manes and glebes, being once regularly designed, cannot be leased or sold by the incumbent in prejudice of his successors, which is in practice extended even to the case where such alienation evidently appears profitable to the benefice.

18. Ministers, beside their glebe, are intitled to grazes for a horse and two cows. And if the lands, out of which the grazes 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 forgage, pasturage, fuel, feal, divot, loaning, and free fish and entry, according to use and wont; but what these privileges are, must be determined by the local custom of the several parishes.

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

20. After the minister's death, his executors have right to the annat; which, in the sense of the canon law, was a right 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, she would be intitled to a third, and the other two thirds would fall equally among the children. But the court of session, probably led by the general practice, practice, have in this last case divided the ann into two equal parts, of which one goes to the widow, and the other among the children in capite.

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 teinds, 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 Christiannitatis; it was also styled the Consistorial Court; from consistory, a name first given to the court of appeals of the Roman emperors, and afterwards to the courts of judicature held by churchmen.

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

24. As the clergy, in times of Popery, assumed a jurisdiction independent of the civil power or any secular court, their sentences could be reviewed only by the Pope, or judges delegated by him; so that, with regard to the courts of Scotland, their jurisdiction was supreme. But, by an act 1560, the appeals from our bishops' courts, that were then depending before the Roman 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 first brought before the commissaries of Edinburgh; but that practice is now in disuse.

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

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

Sect. VI. 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 14 in males, and 12 in females, marriage cannot be contracted by pupils; but if the married pair shall cohabit after puberty, such acquiescence gives force to the marriage. Marriage is fully perfected by consent; which, without consummation, founds all the conjugal rights and duties. The consent requisite to marriage must be de presenti. A promise of marriage (fiducia sponsalicia) 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 canons, and after them our courts of justice, explain a copula subsequent to a promise of marriage into actual marriage.

3. It is not necessary, that marriage should be celebrated by a clergyman. The consent of parties may be declared before any magistrate, or simply before witnesses; and though no formal consent should appear, marriage is presumed from the cohabitation, or living together at bed and board, ot 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 and repute. The father's consent was, by the Roman law, essential to the marriage of children in familia; but, by our law, children may enter into marriage, without the knowledge, and even against the remonstrances, of a father. 4. Marriage is forbidden within certain degrees of blood. By the law of Moses (Leviticus xviii.), which, by the act 1567, c. 15, has been adopted by us, seconds in blood, and all remoter degrees, may all lawfully marry. By seconds in blood are meant first cousins. Marriage in the direct line is forbidden in insitutum; as it is also in the collateral line in the special case where one of the parties is loco parentis to the other, as grand-uncle, great-grand-uncle, &c., with respect to his grand niece, &c. The same degrees that are prohibited in consanguinity, are prohibited in affinity; which is the tie arising from marriage, betwixt one of the married pair, and the blood relations of the other. Marriage also, where either of the parties is naturally unfit for generation, or stands already married to a third person, is ipso jure null.

5. To prevent bigamy and incestuous marriages, the church has introduced proclamation of 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. Marriage is valid when entered into in either of these ways; but when clandestine, there are certain penalties imposed upon the parties as well as the celebrator and witnesses.

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

7. The husband, as the head of the wife, has the sole right of managing the goods in communion, which is called jus mariti. This right is so absolute, that it bears but little resemblance to a right of administering a common subject. For the husband can, in virtue thereof, sell, or even gift, at his pleasure, the whole goods falling under communion; and his creditors may affect them for the payment of his proper debts: so that the jus mariti carries all the characters of an assignation, by the wife to her husband, of her moveable estate. It arises ipso jure from the marriage; and therefore needs no other constitution. But a stranger may convey an estate to a wife, so as it shall not be subject to the husband's administration; or the husband himself may, in the marriage-contract, renounce his jus mariti in all or any part of his wife's moveable estate.

8. From this right are excepted paraphernal goods, which, as the word is understood in our law, comprehends the wife's wearing apparel, and the ornaments proper to her person; as necklaces, ear-rings, breast or arm jewels, buckles, &c. These are neither alienable by the husband, nor affectable by his creditors. Things of promiscuous use to husband and wife, as plate, medals, &c., may become paraphernal, by the husband's giving them to the wife, at or before marriage; but they are paraphernal only in regard to that husband who gave them as such, and are esteemed common moveables, if the wife, whose paraphernalia they were, be afterwards married to a second husband; unless he shall in the same manner appropriate them to her.

9. The right of the husband to the wife's moveable estate, is burdened with the moveable debts contracted by her before marriage: and as his right is universal, jus mariti, so also is his burden; for it reaches to her whole moveable debts, though they should far exceed her moveable estate. Yet the husband is not considered as the true debtor in his wife's debts. In all actions for payment, she is the proper defender: the husband is only cited for his interest, that is, as curator to her, and administrator of the society-goods. As soon therefore as the marriage is dissolved, and the society goods thereby suffer a division, the husband is no farther concerned in the share belonging to his deceased wife; and consequently is no longer liable to pay her debts, which must be recovered from her representatives, or her separate estate.

10. This obligation upon the husband is, however, How perpetuated against him (1.) Where his proper estate, tended a real or personal, has been affected, during the marriage, against the by complete legal diligence; in which case, the husband, band mult, by the common rules of law, relive his property from the burden with which it stands charged; but the utmost diligence against his person is not sufficient to perpetuate the obligation; nor even incomplete diligence against his estate. (2.) The husband continues liable, even after the wife's death, in so far as he is lucrativus or profited by her estate: Still, however, the law does not consider a husband who has got but a moderate tocher with the wife as lucrativus by the marriage; it is the excess only which it considers as lucrum, and that must be estimated by the quality of the parties and their condition of life.—As he was at no time the proper debtor in his wife's moveable debts; therefore, though he should be lucrativus, he is, after the dissolution, only liable for them subfidiarie, i.e., if her own separate estate is not sufficient to pay them off.

11. Where the wife is debtor in that fort of debt, which, if it had been due to her, would have excluded the jus mariti, e.g., in bonds bearing interest, which, as we shall afterwards see (clxxiii. 4.), continues heritable as to the rights of husband and wife, notwithstanding the enactment of the statute 1661, which renders them moveable in certain other respects, the husband is liable only for the bygone interests, and those that may grow upon the debt during the marriage; because his obligation for her debts must be 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, that no suit can proceed against the wife till the husband be cited for his interest. All deeds, done by a wife without the husband's consent, are null; neither can she sue in any action without the husband's con- concurrence. Yet where the husband refuses, or by reason of forfeiture, &c. cannot concur; or where the action is to be brought against the husband himself, for performing his part of the marriage articles; the judge will authorise her to sue in her own name. The effects arising from this curatorial power discover themselves even before marriage, upon the publication of banns; after which the bride, being no longer sui juris, can contract no debt, nor do any deed, either to the prejudice of her future husband, nor even to her own. But in order to this, it is necessary that the banns shall have been published in the bride's parish church as well as in that of her husband.

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

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

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

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

17. As to rights granted by the wife affecting her Rights estate; she has no moveable estate, except her para-fecundation phernalia; 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; for she herself has no proper right to them while the marriage subsists. A wife can lawfully oblige herself, in relation to her heritable estate, with consent of her husband: for though her person is in some sense sunk by the marriage, she continues capable of holding a real estate; and in such obligations her estate is considered, and not her person. A husband, though he be curator to his wife, can, by his acceptance or intervention, authorise rights granted by her in his own favour; for a husband's curatory differs in this respect from the curatory of minors, for it is not merely intended for the wife's advantage, but is considered as a mutual benefit to both.

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

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

20. Marriage, like other contracts, might, by the Roman law, be dissolved by the contrary consent of the 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. In a case which was lately before the court of session, it was determined, after a long hearing in presence, that where a marriage had been dissolved within the year without a living child, by the death of the husband, the widow was intitled to be alimented out of an estate of which he died possessed, though there were no conventional provisions stipulated in favour of the wife.

22. Upon the dissolution of a marriage, after year and day, the surviving husband becomes the irrevocable proprietor of the tocher; and the wife, where she survives, is intitled to her jointure, or to her legal provisions. She has also right to mourning, 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, No clxx. 28.

23. Divorce is such a separation of married persons, during their lives, as looses them from the nuptial tie, and leaves them at freedom to intermarry with others. But neither adultery, nor wilful desertion, are grounds which must necessarily dissolve marriage; they are only handles, which the injured party may take hold of to be free. Cohabitation, therefore, by the injured party, after being in the knowledge of the acts of adultery, implies a passing from the injury; and no divorce can proceed, which is carried on by collusion between the parties, lest, contrary to the first institution of marriage, they might disengage themselves by their own consent; and though, after divorce, the guilty person, as well as the innocent, may contract second marriages; yet, in the case of divorce upon adultery, marriage is by special statute (1600. c. 20.) prohibited betwixt the two adulterers.

24. Where either party has deserted from the other for four years together, that other may sue for adherence. If this has no effect, the church is to proceed, first by admonition, then by excommunication; all which previous steps are declared to be a sufficient ground for pursuing a divorce. De praxi, the commissioners 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 deemed the rule in divorces upon adultery. But by a decision of the court of session 1662, founded on a tract of ancient decisions recovered from the records, the offending husband was allowed to retain the tocher.

Sect. VII. Of Minors, and their tutors and curators.

1. The stages of life principally distinguished in pupillarity, law are, pupillarity, puberty or minority, and majority. A child is under pupillarity, from the birth to 14 years of age if a male, and till 12 if a female. Minority begins where pupillarity ends, and continues till majority; which, by the law of Scotland, is the age of 21 years complete, both in males and females: but minority, in a large sense, includes all under age, whether pupils or pubescent. Because pupils cannot in any degree act for themselves, and minors seldom with discretion, pupils are put by law under the power of tutors, and minors may put themselves under the direction of curators. Tutory is a power and faculty to govern the person, and administer the estate, of a pupil. Tutors are either nominate, of law, or dative.

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

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

4. Where there are two or more agnates equally near to the pupil, he who is intitled to the pupil's legal succession falls to be preferred to the others. But as the law 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 (by act 1474) be at least 25 years of age. He is served or declared by a jury of sworn men, who are called upon a brief issuing from the chancery, which is directed to any judge having jurisdiction. He must give security before he enters upon the management.

5. If no tutor of law demands the office, any person, even a stranger, may apply for a tutory-dative. But because a tutor in law ought to be allowed a competent time to deliberate whether he will serve or not, no tutory-dative can be given till the elapsing of a year from the time at which the tutor of law had first a right to serve. It is the king alone, as the father of his country, who gives tutors-dative, by his court of exchequer; and by act 1672, no gift of tutory can pass in exchequer, without the citation or consent of the next of kin to the pupil, both by the father and mother, nor till the tutor give security, recorded in the books of exchequer. There is no room for a tutor of law, or tutor-dative, while a tutor-nominate can be hoped for; and tutors of law, or dative, even after they have begun to act, may be excluded by the tutor-nominate, as soon as he offers to accept, unless he has expressly renounced the office. If a pupil be without tutors of any kind, the court of session will, at the suit of any kinsman, name a factor (steward) for the management of the pupil's estate.

6. After the years of pupillarity are over, the minor is considered as capable of acting by himself, if he has confidence enough of his own capacity and prudence. The only two cases in which curators are imposed upon minors are: (1.) Where they are named by the father, in a state of health. (2.) Where the father is himself alive; for a father is ipso jure, without any service, administrator, that is, both tutor and curator of law, to his children, in relation to whatever estate may fall to them during their minority. This right in the father does not extend to grandchildren, nor to such even of his immediate children as are fostered. Neither has it place in subjects which are left by a stranger to the minor, exclusive of the father's administration. If the minor chooses to be under the direction of curators, he must raise and execute a summons, citing at least two of his next of kin to appear before his own judge-ordinary, upon nine days warning (by act 1555.). At the day and place of appearance, he offers to the judge a list of those whom he intends for his curators: such of them as resolve to undertake the office must sign their acceptance, and give caution; upon which an act of curacy is extracted.

7. These curators are styled ad negotia; to distinguish them from another sort called curators ad lites, who are authorised by the judge to concur with a pupil or minor in actions of law, either where he is without tutors and curators, or where his tutors and curators are parties to the suit. This sort is not obliged to give caution, because they have no intermeddling with the minor's estate: they are appointed for a special purpose; and when that is over, their office is at an end.

Women are capable of being tutors and curators, under the following restrictions: (1.) The office of a female tutor or curator falls by her marriage, even though the nomination should provide otherwise; for she is no longer sui juris, and incapable of course of having another under her power. (2.) No woman can be tutor of law. Papists are (by act 1700) declared incapable of tutory or curatory. Where the minor has more tutors and curators than one, who are called in the nomination to the joint management, they must all concur in every act of administration; where a certain number is named for a quorum, that number must concur: where any one is named sine quo non, no act is valid without that one's special concurrence. But if they are named without any of these limitations, the concurrence of the majority of the nominees then alive is sufficient.

8. In this, tutory differs from curatory, that as pupils are incapable of consent, they have no person capable of acting; which defect the tutor supplies: but a minor 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. Hence also, the persons of pupils are under the power either of their tutors or of their nearest cognates; but the minor, after pupillarity, has the disposal of his own person, and may reside where he pleases. In most other particulars, the nature, the powers, and the duties of the two offices coincide. Both tutors and curators Judicial inmult, 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 entitled to no allowance for the sums disbursed by them in the minor's affairs (act 1672), 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 leaves of the minor's lands, to endure longer than their own office; nor under the former rental, without either a warrant from the court of session, or some apparent necessity.

10. They have power to sell the minor's moveables; but cannot sell their pupil's land-estate, without the authority of a judge, yet this restraint reaches not to such alienations as the pupil could by law be compelled to grant, e.g. to renunciations of wadsets upon redemption by the reverer; for in such case, the very tenor of his own right lays him under the obligation; nor to the renewal of charters to heirs; but the charter must contain no new right in favour of the heir. The alienation, however, of heritage by a minor, with consent of his curators, is valid.

11. Tutors and curators cannot, contrary to the nature of their trust, authorise the minor to do any deed for their own benefit; nor can they acquire any debt affecting the minor's estate: and, where a tutor or curator makes such acquisition, in his own name, for a less sum than the right is intitled to draw, the benefit thereof accrues to the minor. It seems, however, that such purchase would be considered as valid, provided it were bona fide acquired at a public sale; for in such case it occurs that the tutor or curator is in fact ameliorating the situation of his ward by enhancing the value of his property by a fair competition. In general, it seems to be the genius and spirit of our law, that tutors and curators shall do everything in their power towards the faithful and proper discharge of their respective offices.

12. By the Roman law, tutory and curatory, being munera publica, might be forced upon every one who had not a relevant ground of excuse; but, with us, the persons named to these offices may either accept or decline: and where a father, in liege powrie (when in a state of health), names certain persons both as tutors and curators to his children, though they have acted... as tutors, they may decline the office of curatory. Tutors and curators having once accepted, are liable in diligence, that is, are accountable for the consequences of their neglect in any part of their duty from the time of their acceptance. They are accountable *junguli 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 in consequence of the act 1695, with the special provisos, that they shall be liable barely for introductions, not for omissions; and that each of them shall be liable only for himself, and not *in solidum* for the co-tutors: but this power of exemption from diligence is limited to the estate descending from the father himself. Tutors or curators are not 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 tutory and curatory expire also by the pupil's attaining the age of puberty, or the minor's attaining the age of 21 years complete; and by the death either of the minor, or of his tutor and curator. Curatory also expires by the marriage of a female minor, who becomes thereby under the coverture of her own husband. After expiry of the office, reciprocal actions lie at the instance both of the tutors and curators, and of the minor. That at the instance of the minor is called *adie tutela directa*, by which he can compel the tutors to account; that at the instance of the tutors, *adie tutela contraria*, by which the minor can be compelled to repeat what has been profitably expended during the administration; but this last does not lie till after accounting to the minor; for till then the tutors are presumed *intus habere* to have effects in their own hands for answering their disbursements.

16. Deeds either by pupils, or by minors having curators without their consent, are null; but they oblige the 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 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 capitae minorenitatis et lectionis*, before he be 25 years old. These four years, between the age of 21 and 25, called *quadririennium 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 defrauded 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 imputation or negligence of the minor, or his curator.

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

20. The privilege of restitution does not always die with the minor himself. (1.) If a minor succeeds to a minor, the time allowed for restitution is governed by the minority of the heir, not of the ancestor. (2.) If a minor succeeds to a major, who was not full 25, the privilege continues with the heir during his minority; but he cannot avail himself of the *anni utiles*, except in so far as they were unexpired at the ancestor's death. (3.) If a major succeeds to a minor, he has only the *quadririennium utile*, after the minor's death; and if he succeeds to a major dying within the *quadririennium*, 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 falsehood 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. estate by adjudication. (4.) Nor in actions pursued by the minor's superior, upon feudal casualties. (5.) This privilege cannot be pleaded in bar of an action which had been first brought against the father, and is only continued against the minor; nor where the father was not in the peaceable possession of the heritable subject at his death. Before the minor can plead it, he must be served heir to his father. The persons of pupils are by said act 1696 protected from imprisonment on civil debts.

23. Curators are given, not only to minors, but in general to every one who, either through defect of judgment, or unfitness of disposition, is incapable of rightly managing his own affairs. Of the first sort, are idiots and furious persons. Idiots, or fainii, 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 has a retrospective effect; for it is declared a sufficient ground, without further evidence, for reducing all deeds granted after the period at which it appeared by the proof that the fatuity or 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 cognized idiots by an inquest.

25. We have some few instances of the sovereign's giving curators to idiots, where the next agnate did not claim; but such gifts are truly deviations from our law, since they pass without any inquiry into the state of the person upon whom the curatory is imposed. Hence the curator of law to an idiot, serving quondamcumque, 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. This may be done by Interdiction, which is a legal restraint laid upon such persons from signing any deed to their own prejudice, without the consent of their curators or interdictors.

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

28. Judicial interdiction is imposed by a sentence of the court of session. It commonly proceeds on an action brought by a near kinsman to the party; and sometimes from the noble 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 must be taken off by the authority of the same court that imposed it.

29. An interdiction need not be served against the regina persona interdicted; but it must be executed, or publication of interdiction where he resides, by publicly reading the interdiction there, after three oaths made for convoking the lieges. A copy of this execution must be affixed to the crofs; and thereafter, the interdiction, with its execution, must (by the act 1581) be registered in the books both of the jurisdiction where the person interdicted resides and where his lands lie, or (by the act 1600) in the general register of the session, within 40 days from the publication. An interdiction, before it is registered, has no effect against third parties, tho' they should be in the private knowledge of it; but it operates against the interdictors themselves, as soon as it is delivered to them.

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

Part III.

Law of Scotland against the heritable estate may proceed upon them.

31. All onerous or rational deeds granted by the person interdicted, are as effectual, even without the consent of the interdictors, as if the 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, for making up to him what he has lost through their undue consent. It is no part of the duty of interdictors, to receive sums or manage any estate; they are given merely ad auctitatem praesidantem, 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 forisfamiliated, in so far as concerns that stock; for the profits arising from it are his own. Forisfamiliation, when taken in this sense, is also inferred by the child's marriage, or by his living in a separate house, with his father's permission or good-will. Children, after their full age of twenty-one years, become, according to the general opinion, their own masters: and from that period are bound to the father only by the natural ties of duty, affection, and gratitude. The mutual obligations between parents and children to maintain each other, are explained afterwards, N° clxxiii. 4.

33. Children born out of wedlock, are styled natural children, or bastards. Bastards may be legitimated or made lawful, (1.) By the subsequent intermarriage of the mother of the child with the father. And this sort of legitimation intitles the child to all the rights of lawful children. The subsequent marriage, which produces legitimation, is considered by the law to have been entered into when the child legitimated was begotten; and hence, if he be a male, he excludes, by his right of primogeniture, the sons procured 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. N° clxxii. 3.

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

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

36. But by 15 Geo. III. c. 28, these restraints, the only remaining vestiges of slavery in the law of Scotland, are abrogated; and, after the 1st July 1775, all colliers, coal-bearers, and falters, are declared to be upon the same footing with other servants or labourers. The act subjects those who were bound prior to the 1st July 1775, to a certain number of years service for their freedom, according to the age of the person.

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

CHAP. II.

Of Things.

THE things, or subjects, to which persons have right, are the second object of law.

Sect. I. Of the division of rights, and the several ways by which a right may be acquired.

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 emolumently to their neighbour's prejudice. Every state or sovereign has a power over private property, called, by some lawyers, dominium eminens; in virtue of which, the proprietor may be compelled to sell his property for an adequate price, where an evident utility on the part of the public demands it.

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

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

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

5. In that sort of moveables which never had an owner, as wild-beasts, fowls, fishes, or pearls found on the shore, the original law takes place, that he who first apprehends, becomes proprietor; in so much, that though the right of hunting, fowling, and fishing, be restrained by statute, under certain penalties, yet all game, even what is caught in contravention of the law, becomes the property of the catcher (unless where the confiscation thereof is made part of the penalty), the contravenor being obnoxious, however, to the penal enactment of the statutes in consequence of his transgression. It was not for a long time a fixed point whether a person, though possessed of the valued rent by law intitling him to kill game, could hunt upon another person's grounds without consent: but it was lately found by the court of session, and affirmed upon appeal, that he could not; it being repugnant to the idea of property, that any person, however qualified, should have it in his power to traverse and hunt upon another's grounds without consent of the proprietor. Although certain things become the property of the first occupant, yet there are others which fall not under this rule. Thus, whales thrown in or killed on our coasts, belong neither to those who kill them, nor to the proprietor of the grounds on which they are cast; but to the king, providing they are so large as that they cannot be drawn by a wane with six oxen.

6. Accession is that way of acquiring property, by Accession, which, in two things which have a connection with or dependence on one another, the property of the principal thing draws after it the property of its accessory. Thus the owner of a cow becomes the owner of the calf; a house belongs to the owner of the ground on which it stands, though built with materials belonging to and at the charge of another; trees taking root in our ground, though planted by another, become ours. Thus also, the infallible addition made to one's ground by what a river washes from other grounds (which is called alluvio), accrues to the matter of the ground which receives the addition: but where it happened that a large piece of ground was disjoined and annexed to another person's by the force of a river or any other accident, and which was by the Romans called aquifugo, they considered the owner's right of property, still to subsist, § 21. Inst. de rer. divis; and it is probable that, in a similar case, our courts would countenance the distinction. The Romans excepted from this rule the case of paintings drawn on another man's board or canvas, in consideration of the excellency of the art; which exception our practice has for a like reason extended to similar cases.

7. Under accession is comprehended Specification; Specification; by which is meant, a person's making a new species or item, 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. But the person who thus carries the property from the other is bound to indemnify indemnify him according to the true value; and in case it was done mala fide, he may be made liable in the pretium affissionis or utmost value.

8. Though the new species should be produced from the Commixture or confusion of different substances belonging to different proprietors, the same rule holds; but where the mixture is made by the common consent of the owner, such consent makes the whole a common property, according to the shares that each proprietor had formerly in the several subjects. Where things of the same sort are mixed without the consent of the proprietors, which cannot again be separated, e.g., two 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 caufa, the other the modus transferendi dominii; which last is so necessary to the acquiring of property, that he who gets the last right, with the first tradition, is preferred, according to the rule, Traditionibus, non nudis pactis, transferuntur rerum dominia.

10. Tradition is either real, where the ipsa corpora of moveables are put into the hands of the receiver; or 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, movables 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 possess it by the borrower; the proprietor of lands, by his tackman, trustee, or steward, &c. The same subject cannot be possessed entirely, or in solitudinem, 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 inpignoration; while the proprietor is considered as possessing, in and through the creditor, in so far as is necessary for supporting his right of property. The same doctrine holds in liferenters, tacksmen, and, generally, in every case where there are rights affecting a subject distinct from the property.

12. A bona fide possessor is he who, though he is not bona fide really proprietor of the subject, yet believes himself proprietor on probable grounds. A mala fide possessor is he who knows, or is presumed to know, that what he possesses is the property of another. A possessor bona fide 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 confusio, secures the possessor: nay, if he has sown the ground, while his bona fides continued, he is intitled to reap the crop, propter curam et culturam. But this doctrine does not reach to civil fruits, e.g., the interest of money, which the bona fide receiver must restore, together with the principal, to the owner.

13. Bona fides necessarily cease 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 litigantestation, and, in cases uncommonly favourable, not till sentence be pronounced against the possessor.

14. The property of moveable subjects is presumed by the bare act of possession, until the contrary be proved; but possession of an immoveable subject, tho' 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.

Sect. II. Of heritable and moveable rights.

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

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

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

4. Bonds merely personal, though bearing a clause of interest, are, by act 1661, declared to be moveable as to succession; i.e. they go, not to the heir, but to the next of kin or executors; but they are heritable with respect to the fisk, and to the rights of husband and wife; that is, though, by the general rule, moveable rights fall under the communion of goods consequent upon marriage, and the moveables of denounced persons fall to the crown or fisk 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 delination of the creditor. But a bond, which is made payable to heirs, without mention of executors, descends, not to the proper heir in heritage, though heirs are mentioned in the bond, but to the executor; for the word heir, which is a generic term, points out him who is to succeed by law in the right; and the executor, being the heir in mobilibus, is considered as the person to whom such bond is taken payable. But where a bond is taken to heirs-male, or to a series of heirs, one after another, such bond is heritable, because its delination necessarily excludes executors.

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

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

8. Certain subjects partake, in different respects, of partly heritable, partly moveable nature both of heritable and moveable. Personal bonds are, by the above cited act 1661, moveable in respect of succession; but heritable as to the fisk, and the rights of husband and wife. All bonds, whether merely personal, or even heritable, on which no seisin has been 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 delination 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 moveable 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.

I. HERITABLE RIGHTS.

Sect. III. Of the constitution of heritable rights by charter and seisin.

Heritable rights are governed by the feudal law, Origin of which owed its origin, or at least its first improvements, the feudal law, 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 by the grantor by the receiver; the radical right of the lands still remaining in the grantor. Under lands, in this definition, are comprehended all rights or subjects so connected with land, that they are deemed a part thereof; as houses, mills, fishings, jurisdictions, patronages, &c. Though feus in their original nature were gratuitous, they soon became the subject of commerce; services of a civil or religious kind were frequently substituted in place of military; and now, of a long time, services of every kind have been entirely dif- pened 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 feus; though that word is at other times, in our law, used to signify one particular tenure. (See Sect. iv. 2.) The interest retained by the superior in the feus is styled dominium directum, or the superiority; and the interest acquired by the vassal, dominium utile, or the property. The word feus 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 so when they are given without the condition of fealty or homage. By the feudal system, the sovereign, who is the fountain of feudal rights, reserves to himself the superiority of all the lands of which he makes the grant; to that, with us, no lands are allodial, except those of the king's own property, the superiorities which the king reserves in the property-lands of his subjects, and 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 immovable subject, provided he has the free administration of his estate, and is not debarred by statute, or by the nature of his right, may dispose of it to another. Nay, a vassal, though he has only the dominium utile, can subfeud his property to a subvassal by a subalterneright, 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 favored 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 feus. From this general rule are excepted, 1. The annexed property of the crown, which is not alienable without a previous dissolution in parliament. 2. Tailized lands, which are devised under condition that they shall not be aliened. 3. An estate in hereditate jacente cannot be effectually aliened by the heir-apparent (i.e., not entered); but such alienation becomes effectual upon his entry, the supervening right accruing in that case to the purchaser; which is a rule applicable to the alienation of all subjects not belonging to the vender at the time of the sale.

8. The feudal right, or, as it is called, invesiture, 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 helden, 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 base rights, from bas, lower: and sometimes private, because, before the establishment of our records, they were easily concealed from third parties; the nature of all which will be more fully explained, Sect. vii. An original charter is that by which the feus is first granted: A charter by progres is a renewed disposition of that feus 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 inductive of the grant. If the grant be made for a valuable consideration, it is said to be onerous; if for love and favour, gratuitous. In the dispositive clause of a charter, the subjects made over are described either by special boundaries or march-towns, (which is called a bounding charter), or by such other characters as may sufficiently distinguish them. A charter regularly carries right to no subjects but what are contained in this clause, though they should be mentioned in some other clause of the charter. It has been however found, that a right to salmon-fishing was carried by a clause cum piscariis in the tenendas of a charter, the same having been followed with possession.

10. The clause of tenendas (from its first words tenendar praediar 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 Warrandice-granter obliges himself that the right conveyed shall die, 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 clause, the granter is liable in absolute warrandice, though no warrandice be expressed; but in assignments to debts or decrees, no higher warrandice than from fact and deed is implied.

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

13. Absolute warrandice, in case of eviction, affords Effects of an warrandice 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 juris, it is not easily presumed, nor is it incurred from every light servitude that may affect the subject; far less does it extend to burdens which may affect the subject posterior to the grant, nor to those imposed by public statute, whether before or after, unless specially warranted against.

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

15. The charter concludes with a precept of seisin, which is the command of the superior 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 supplantable, 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 60 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. Burgage seisons are ordained to be registered in the books of the borough.

19. Unregistered seisons are ineffectual against third parties, but they are valid against the grantors and their heirs. Seisons 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 contiguous lands, a separate seisin must be taken on every parcel, unless the sovereign has united them into one tenendry 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 seisons, 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 plies union 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 created into a barony be sold by the vassal to be holden a me, the whole union is not thereby dissolved; what remains unfold retains the quality.

22. A charter, not perfected by seisin, is a right merely personal, which does not transfer the property becomes (see No. clxxiii. i.) and a seisin of itself bears no real only 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 seisons, even though the charters on which they proceed should be prior to his.

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

Sect. IV. 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 whiching, was granted for military service. Its proper reddendo was, services, or services used and wont; by which last was meant the performance of service whenever the superior's occasions required it. As all feudal rights were originally held by this tenure, ward-holding was in dubio presumed. Hence, though the reddendo had contained some special service or yearly duty, the holding was presumed ward, if another holding was not particularly expressed.

2. Feu-holding is that whereby the vassal is obliged to Part II.

Law of Scotland.

to pay to the superior a yearly rent in money or grain, and sometimes also in services proper to a farm, as ploughing, reaping, carriages for the superior's use, &c., 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 elutory yearly duty, as a penny money, a rofe, a pair of gilt spurs, &c. etc., in acknowledgment of the superiority, nomine alba 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 specialty, that the vassal is not a private person, but a community; and indeed, watching and warding, which is the usual service contained in the reddendo of such charters, might be properly enough said, some centuries ago, to have been of the military kind. As the royal borough is the king's vassal, all burgage-holders hold immediately of the crown; the magistrates, therefore, when they receive the resignations of the particular burgesses, and give feifin to them, act, not as superiors, 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 prestable by the vassals were prayers, and singing of masses for the souls of the deceased, which approaches nearer to blanch-holding than ward. The purposes of such grants having been, upon the reformation, declared superstitious, the lands mortified were annexed to the crown; but mortifications to universities, hospitals, &c. were not affected by that annexation; and lands may, at this day, be mortified to any lawful purpose, either by blanch or by feu holding. But as the superior must lose all the casualties of superiority in the case of mortifications to churches, universities, &c. which being considered as a corporation, never dies; therefore lands cannot be mortified without the superior's consent. Craig, lib. i. disp. ii. § 21.

Sect. V. 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 debitum 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 ward-holding tenure subsisted, were ward, recognition, and ing-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 helden ward of the crown or prince is turned into blanch, for payment of one penny Scots yearly, si petatur tantum; and the tenure of those holders of subjects into feu, for payment of such yearly feu-duty in money, victual, or cattle, in place of all services, as should be fixed by the court of session. And accordingly that court, by act of federunt Feb. 8. 1749, laid down rules for ascertaining the extent of these feu-duties. A full history of their casualties, and of the effects consequent upon their failing to the superior, will be found in Erskine's large Institute, B. 2. T. 5. § 5. et sequen; to which the reader is referred.

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

5. The casualties common to all holdings are, non-entry, relief, inferent 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 or infestment is set aside upon nullities. The heir, from the death of the ancestor, till he be cited by the superior in a process of general declarator of non-entry, loses only the retoured duties of his lands, (see next parag.) and he forfeited these, though his delay should not argue any contempt of the superior, because the casualty is considered to fall, as a condition implied in the feudal right, and not as a penalty of transgression; but reasonable excuses are now admitted to liberate even from the retoured duties before citation.

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 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: therefore, in all services of heirs, the inquest came at last to take proof likewise of the present value of the lands contained in the brief (quantum nunc valent), in order to fix these casualties. The first was called the old, and the other the new, extent. Though both extents were ordained to be specified in all retours made to the chancery upon briefs of inquest; yet by the appellation of retoured duties in a question concerning casualties, the new extent is always understood. The old extent continued the rule for levying public subsidies, till a tax was imposed by new proportions, by several acts made during the usurpation. By two acts of Cromwell's parliament, held at Westminster in 1656, imposing taxation on Scotland, the rates laid upon the several counties are precisely fixed. The subsidy granted by the act of convention 1667 was levied on the several counties, nearly in the same proportions that were fixed by the usurper in 1656; and the sums to which each county was subjected were subdivided among the individual landholders in that county, according to the valuations already settled, or that should be settled by the commissioners appointed to carry that act into execution. The rent fixed by these valuations is commonly called the valued rent; according to which the land-tax, and most of the other public burdens, have been levied since that time.

7. In feu-holdings, the feu-duty is retoured as the rent, because the feu-duty is presumed to be, and truly was at first, the rent. The superior therefore of a feu-holding gets no non-entry, before citation in the general declarator; for he would have been intitled to the yearly feu-duty, though the fee had been full, i.e., though there had been a vassal 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 annual rent 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 thereupon.

11. Relief is that casualty which intitles the superior. Relief prior to an acknowledgment or consideration from the heir for receiving him as vassal. It is called relief, because, by the entry of the heir, his fee is relieved out of the hands of the superior. It is not due in feu-holdings flowing from subjects, unless where it is expressed in the charter by a special clause for doubling the 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 escheoir, to happen or fall) is that forfeiture which falls through a person's being denounced rebel. It is either single or liferent. Single escheat, though it does not accrue to the superior, must be explained in this place, because of its coincidence with liferent.

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

14. The messenger must execute these letters (and indeed all summonses) against the debtor, either personally or at his dwelling-house; and, if he get not access to the house, he must strike six knocks at the gate, and thereafter affix to it a copy of his execution. If payment be not made within the days mentioned in the horning, the messenger, after proclaiming three 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 Denunciation at the horn. Where the debtor is not in Scotland, he must be charged on sixty days, and denounced at the market- 15. Denunciation, if registered within 15 days, either in the sheriff's books, or in the general register, drew after it the rebel's single escheat, i.e., the forfeiture of his moveables to the crown. Persons denounced rebels have not a persona 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 assignee.

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

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

18. The rebel, if he either pays the debt charged for, or suspends the diligence, may procure letters of relaxation from the horn, which, if published in the same place, and registered 15 days thereafter in the same register with the denunciation, have the effect to restore him to his former state; but they have no retrospect as to the moveables already fallen under escheat, without a special clause for that purpose.

19. The rebel, if he continues 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 intitled, each of them, to the rents of such of the lands belonging to the rebel as hold of himself, during all the days of the rebel's natural life, by the casualty of liferent 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 seisin be taken thereon within year and day after the granter's rebellion.

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

23. Disclamation is that casualty whereby a vassal forfeits his whole feus to his superior, if he disowns him, or disclaims him, without ground, as to any part of it. Purpresture draws likewise a forfeiture of the whole purpresefeu after it; and is incurred by the vassal's encroaching ture, 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, signatures, 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 novadamus, must have the king's sign-manual for their warrant.

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

26. Seals are to royal grants what subscription is to rights derived from subjects, and give them authority; they serve also as a check to gifts procured (liberations 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 Sect. VI. Of the right which the vassal acquires by getting the feu.

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

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

3. There are certain rights naturally consequent on property, which are deemed to be preserved by the crown as regalia; unless they be specially conveyed. Gold and silver mines are of this sort; the first universally; and the other, where three half-pennies of silver can be extracted from the pound of lead, by act 14.24., (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 understood to be referred by the crown, if it be not expressly granted; but 40 years possession thereof, where the lands are either erected into a barony, or granted with the general clause of fishings, establishes the full right of the salmon fishing in the vassal. A charter of lands, within which any of the king's forests lie, does not carry the property of such forest to the vassal.

5. All the subjects which were by the Roman law accounted res publicae, as rivers, highways, ports, &c. are, since the introduction of feus, held to be inter regalia, or in patrimonio principis; and hence encroachment upon a highway is said to infer purpresture. No person has the right of a free port without a special grant, which implies a power in the grantee to levy anchorage and shore dues, and an obligation upon him to uphold the port in good condition. In this class of things, our forefathers reckoned fortalices, 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 pertinent to the lands specially contained in the charter, but to those that have been possessed 40 years as pertinent thereof. But, 1. If the lands in the grant are marked out by special limits, the vassal is circumscribed by the tenor of his own right, which excludes every subject without these limits from being pertinent of the lands. 2. A right possessed under an express infestation is preferable, ceteris paribus, to one possessed only as pertinent. 3. Where neither party is infest per expressum, the mutual promiscuous possession by both, of a subject as pertinent, resolves into a 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 pasturage only, or to casting feal 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 privileges, the several parts contained in it into one individual of barony-right, the general conveyance of a barony carries with it all the different tenements of which it consists, tho' they should not be specially enumerated (and this holds, even without erection into a barony, in lands that have been united under a special name). Hence, likewise, the possession by the vassal of the smallest part of the barony-lands preserves to him the right of the whole.

8. The vassal is intitled, in consequence of his property, to levy the rents of his own lands, and to recover them from his tenants by an action for rent before his own court; and from all other possessors and intro-mitters, 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 leave, the use of land, or any other immovable subject, is set to the lessee or tackman for a certain yearly rent, either in money, the fruits of the ground, or services. It ought to be reduced into writing, as it is a right concerning lands; tacks, therefore, that are given verbally, to endure for a term of years, are good against neither party for more than one year. An obligation to grant a tack is as effectual against the grantor as a formal tack. A liferenter, having a temporary property in the fruits, may grant tacks to endure for the term of his own liferent.

9. The tackman's right is limited to the fruits which spring up annually from the subject set, either naturally, or by his own industry; he is not therefore intitled to any of the growing timber above ground, and far less to the minerals, coal, clay, &c. under ground, the use of which confines 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 14.49., 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 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 pure debetur, praesenti die debetur*. If it does not mention the ish, i.e., the term at which it is to determine, it is good for one year only; but, if the intention of parties to continue it for more than one year, should appear from any clause in the tack (e.g., if the tackman should be bound to certain annual pre- tations), it is sustained for two years as the minimum.

Tacks granted to perpetuity, or with an indefinite ish, have not the benefit of the statute. Tacks of houses within borough do not fall within this act, it being customary to let these from year to year.

11. Tacks necessarily imply a delictus personae, a choice by the fetter of a proper person for his tenant. Hence the conveyance of a tack which is not granted to affig- nees, 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 affignees, falls by her marriage; because the marriage, which is a legal conveyance thereof to the husband, cannot be annulled. This implied exclusion of affignees is, however, limited to voluntary, and does not extend to necessary, affig- nees; as an adjudication of a tack by the tackman's creditor: but a tack, expressly excluding affig- nees, cannot be carried even by adjudication. It was not a fixed point for a long time, whether a tenant could sublet without consent of the landlord; but the court of session, in a case which occurred a few years ago, denied the power of subletting in the tenant. Liferent tacks, because they import a higher degree of right in the tackman than tacks for a definite term, may be assigned, unless affignees be specially excluded.

12. If neither the fetter nor tackman shall properly discover their intention to have the tack dissolved at the term fixed for its expiration, they are underflood, or presumed, to have entered into a new tack upon the same terms with the former, which is called *tacit relocation*; and continues till the landlord warns the tenant to remove, or the tenant renounces his tack to the landlord: this obtains also in the case of moveable tenants, who possess from year to year without written tacks. In judicial tacks, however, by the court of session, tacit relocation neither does nor can take place; for cautioners being interposed to these, they are loosed at the end of the tack: and therefore, where judicial tackmen possess after expiry of their right, they are accountable as factors.

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

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

15. Tacks may be evacuated during their currency, Definitio (1.) In the same manner as feu-rights, by the tackman's running in arrear of his tack-duty for two years together. This irritancy may be prevented by the tenant's making payment at the bar before sentence. (2.) Where the tenant either runs in arrear of one year's rent, or leaves his farm uncultivated at the usual season; in which case he may, by act of federunt 1756, be ordained to give security for the arrears, and for the rent of the five following crops, if the tack shall subsist so long; otherwise, to remove, as if the tack were at an end. (3.) Tacks may be evacuated at any time by the mutual consent of parties.

16. The landlord, when he intends to remove a tenant whose tack is expiring, or who possesses without a tack, must, upon a precept signed by himself, warn the tenant forty days preceding the term of Whitunday, at or immediately preceding the ish, personally, Warning, 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. Whitunday, though it be a moveable festa, is, in questions of removing, fixed to the 15th of May. In warnings from tenements within borough, it is sufficient that the tenant be warned forty days before the ish of the tack, whether it be Whitunday or Martinmas; and in these the ceremony of chalking the door is sustained as warning, when proceeding upon a verbal order from the proprietor.

17. This process of warning was precisely necessary for founding an action of removing against tenants, till the act of federunt 1756, which leaves it in the option of the proprietor, either to use the former method, or to bring his action of removing before the judge-ordinary, which, if it be called 40 days before the said term of Whitunday, shall be held as equal to a warning. Where the tenant is bound, by an express clause of his tack, to remove at the ish without warning, such obligation is, by the said act, declared to be a sufficient warrant for letters of horning, upon which, if the landlord charge his tenant forty days before the said Whitunday, the judge is authorized 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 Actions of who had seized the possession by force, or who, without removing, any legal title, had intruded into it, after the last possessor had given it up. (2.) Against possessors who had a naked tolerance. (3.) Against tenants who had run in arrear of rent, during the currency of their tacks.

(4.) Against such as had sold their lands, and yet continued to possess after the term of the purchaser's entry. Upon the same ground, warning was not required, in removing against possessors of liferented lands, after the death of the liferenter who died in the natural possession; but if he possessed by tenants, these tenants could not be disturbed in their possessions till the next Whitunday, that they might have time to look out for other farms; but they might be compelled to remove at that term, by an action of removing, without warning.

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

20. The defender, in a removing, must (by act 1555), before offering any defence which is not instantly verified, give security to pay to the fetter the violent profits, if they should be awarded against him. These are so called, because the law considers the tenant's possession after the warning as violent. They are estimated, in tenements within boroughs, 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 tacksmen, and decrees thereupon, if the order be used, which is set forth supra (17.), are, by the act of federunt 1756, declared to be effectual against the allegiance to the tack or subtenants.

22. The landlord has, in security of his tack-duty, over and above the tenant's personal obligation, a tacit pledge or hypothec, not only on the fruits, but on the cattle pasturing on the ground. The corn, and other fruits, are hypothecated for the rent of that year whereof they are the crop; for which they remain affected, though the landlord should not use his right for years together. In virtue of this hypothec, the landlord is entitled to a preference over any creditor, though he has actually used a poinding; except in the special case, that the poinding is executed after the term of payment, when the landlord can appropriate the crop for his payment, the poinder in such case being obliged to leave as much on the ground as to satisfy the landlord's hypothec: and it has been lately found, that this right of the landlord is preferable even to a debt due to the crown, for which a writ of extent had been issued: but the case here alluded to is presently under appeal.

No 177.

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

24. In tacks of houses, breweries, shops, and other tenements, which have no natural fruits, the furniture and other goods brought into the subject 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.

Sect. VII. 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 son of heirs who acquire by gift, purchase, or other singular title, dal right. This last sort of transmission is either voluntary, by disposition; or necessary, by adjudication.

2. By the first feudal rules, no superior could be compelled to receive any vassal in the lands, other than the heir expressed in the investiture; for the superior alone had the power of ascertaining to what order of heirs the fee granted by himself was to descend. But this right of refusal in the superior did not take place, (1.) In the case of creditors apprizers or adjudgers, whom superiors were obliged to receive upon payment of a year's rent (1469, c. 37. 1672, c. 19.); (2.) In the case of purchasers of bankrupt estates, who were put on the same footing with adjudgers by 1690, c. 20. The crown refuses no voluntary disponee, on his paying a composition to the exchequer of a fifth part of the valued rent. Now, by 20 Geo. II. superiors are directed to enter all singular successors (except incorporations) who shall have got from the vassal a disposition, containing procuratory of resignation; they always receiving the fees or casualties that law intitles them to on a vassal's entry, i.e. a year's rent (a).

3. Safe 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 granter and receiver, a public right was preferable to it, unless cloathed.

(a) It was long matter of doubt how this composition due to the superior upon the entry of singular successors should be regulated. The matter at last received a solemn decision, finding, That the superior is intitled, for the entry of singular successors, in all cases where such entries are not taxed, to a year's rent of the subject, whether lands or houses, as the same are set, or may be set at the time; deducting the feu-duty and all public burdens, and likewise all annual burdens imposed on the lands by consent of the superior, with all reasonable annual repairs to houses and other perishable subjects. cloathed with possession: but as this distinction was no longer necessary after the establishment of the records, all 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 granter's superior, may be perfected either by confirmation or resignation; and therefore they generally contain both precept of seisin and procuratory of resignation. When the receiver is to complete his right in the first way, he takes seisin upon the precept; but such seisin is ineffectual without the superior's confirmation; for the disposition 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 seisin 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 completes a public right.

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

7. Resignation is that form of law, by which a vassal surrenders his feu to his superior; and it is either ad 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 vassal's 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 seisin. And because resignations in favorem are but incomplete personal deeds, our law has made no provision for recording them. Hence, the first seisin on a second resignation is preferable to the last seisin upon the first resignation; but the superior, accepting a second resignation, whereupon a prior seisin may be taken in prejudice of the first resignation, is liable in damages.

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

Sect. VIII. 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 annuallent, and rights in security. A wadset (from wad or pledge) is a right, by Wadset, which lands, or other heritable subjects, are impignorated by the proprietor to his creditor in security of his debt; and, like other heritable rights, is perfected by seisin. The debtor, who grants the wadset, and has the right of reversion, is called the reverfer; and the creditor, receiver of the wadset, is called the wadsetter.

2. Wadsets, by the present practice, are commonly made out in the form of mutual contracts, in which one party sells the land, and the other grants the right of reversion. When the right of reversion is thus incorporated in the body of the wadset, it is effectual without registration; because the singular successor in the wadset is, in that case, sufficiently certified of the reversion, though it be not registered, by looking into his own right, which bears it in gremia. 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 seizins within 60 days after the date of the seisin upon the wadset.

3. Rights of reversion are generally esteemed juristi 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 reverfions 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 reverer at liberty to redeem the lands quandoconque, without restriction in point of time; but a clause is adjected to some reversions, that if the debt be not paid against a determinate day, the right of reversion shall be irritated, and the lands shall become the irredeemable property of the wadsetter. Nevertheless, the irritancy being penal, as in wadsets, where the sum lent falls always short of the value of the lands, the right of redemption is by indulgence continued to the reverer, even after the term has expired, while the irritancy is not declared. But the reverer, if he does not take the benefit of this indulgence within 40 years after the lapse of the term, is cut out of it by prescription.

5. If the reverer 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 reverer, then and there to receive payment of his debt, and thereafter to renounce his right of wadset. In the voluntary redemption of a right of wadset holden safe, a renunciation duly registered re-establishes the reverer in the full right of the lands. Where the wadset was granted to be holden of the grantor's superior, the superior must receive the reverer, on payment of a year's rent, if he produce a deposition 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 reverer 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 reverer must consign it under form of instrument, in the hands of the person appointed in the right of reversion; or, if no person be named, in the hands of the clerk to the bills, a clerk of session, or any responsible person. An instrument of consignation, with the confignatory's receipt of the money consigned, completes the order of redemption, stops the farther currency of interest against the reverer, 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 confignatory upon letters of horning to deliver it up to him; but, because the reverer 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 reverer, and the wadsetter's interest in the wadset continues heritable till that period.

8. If the wadsetter chooses to have his money rather than the lands, he must require from the reverer, 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 reverer has consigned the redemption-money in consequence thereof.

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

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

11. If the wadsetter be intitled by his right to enjoy the rents without accounting, and if at the same time the reverer be subjected to the hazard of their deficiency, such contract is justly declared usurious: and also in all proper wadsets wherein any unreasonable advantage has been taken of the debtor, the wadsetter must (by act 1661), during the not requisition of the sum lent, either quit his possession to the debtor, upon his giving security to pay the interest, or subject himself to account for the surplus-rents, as in improper wadsets.

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

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

14. Infestments in security are another kind of re-deemable 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 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 annual rent for his payment. They are extinguished as rights of annual rent.

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

Sect. IX. Of Servitudes.

Servitude is a burden affecting lands, or other lienable 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 action in favour of another.

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

3. Servitudes constituted by grant are not effectual, in a question with the superior of the tenement burdened with the servitude, unless his consent be admitted; for a superior cannot be hurt by his vassal's deed: but where the servitude is acquired by prescription, the consent of the superior, whose right afforded him a good title to intermed, 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 possit.

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, aditus, via, tudes, aqueductus, aquaquaflus, and jus pasendi pecoris. Similar servitudes may be constituted with us, of a foot-road, horse-road, cart-road, dams, and aqueducts, watering of cattle, and pasturage. The right of a highway is not a servitude constituted in favour of a particular tenement, but is a right common to all travellers. The care of 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 grantor's own property, and likewise all pasturage due to them out of other lands. When a right of pasturage is given to several neighbouring proprietors, on a moor or common belonging to the grantor, indefinite as to the number of cattle to be pastured, the extent of their several rights is to be proportioned according to the number that each of them can fodder in winter upon his own dominant tenement.

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

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

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

10. The servitudes altius non tollendi, et non efficiendi luminis vel prospectui, restrain proprietors from raising their houses beyond a certain height, or from making any building whatsoever that may hurt the light or prospect of the dominant tenement. These servitudes cannot be constituted by prescription alone: for, though a proprietor should have his house ever so low, or should not have built at all upon his grounds for 40 years together, he is presumed to have done so for his own 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 fuel 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 fuel, or thatch, or the other uses of his own tenement.

Thirlage.

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 third or fucken) the servient. Multure is the quantity of grain or meal payable to the proprietor of the mill, or to the multurer his taskman. The sequels are the small quantities given to the servants, under the name of knavery, bannock, and lock or goupen. 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 fucken multures; but those paid by the third are ordinarily higher, and are called in town or in fucken multures.

13. Thirlage may be constituted by a land-holder, when, in the dilposition of certain lands, he astricts them to his own mill; or when, in the dilposition 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 betwixt the two. Hence, if a baron makes over the mill of a barony, cum multuris, or cum agricola multuris, it infers an astriction of the barony lands to the mill conveyed, although they had not formerly been astricted. 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 thirl, though of another growth. Where the thirlage is of grindable grain, it is in practice restricted to the corns which the tenants have occasion to grind, either for the support of their families, or for other uses; the surplus may be carried out of the thirl unmanufactured, without being liable in multure. Where it is of the grana crecentia, the whole grain growing upon the thirl is astricted, with the exceptions, 1. Of seed and horse-corn, which are destined to uses inconsistent with grinding; and, 2. Of the farm duties due to the landlord, if they are delivered in grain not ground. 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 or oat-meal brought into the servient tenement, unless the importer had bought it in grain, and grinded it at another mill. The same grain that owes multure, as grana crecentia, to the mill in whose thirl 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 thirlages is in the same proprietor, he cannot exact both. Where lands are thirled in general terms, without expressing the particular nature of the servitude, the lightest thirlage is presumed, from the favour of liberty; but in the astriction of a borough or village, where there is no growing grain which can be the subject of thirlage, the astriction of invecta et illata must be necessarily undefiled.

17. Thirlage, in the general case, cannot be established by prescription alone, for its quo sunt mere facultates non praescribuntur; but where one has paid for 40 years together the heavy fucken multures, the slightest title in writing will subject his lands. Thirlage may, contrary to the common rule, be constituted by prescription alone, 1. Where one pays to a mill a certain sum, or quantity of grain yearly, in name of multure, whether he grinds at it or not, (called dry multure). 2. In mills of the king's property; which is constituted jure 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 thirlage itself cannot be constituted by mere possession, the proportion of multure payable to the dominant tenement may be so fixed.

18. The possessors of the lands astricted 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 arcistrictio strictio 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 moors, 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 person comes to be proprietor of the dominant. The marriage has subsisted for year and day, or where a child has been born alive of it (a).

25. The terce is not limited to lands, but extends to teinds, and to servitudes and other burdens affecting lands; thus, the widow is intitled, in the right of her terce, to a liferent of the third of the same secured, either by rights of annuallrent, or by rights in securitie. 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 reverention, superiority, nor patronage, fall under the terce; for none of these have fixed profits, and so are not proper subjects for the widow's subsistence; nor tacks, because they are not feudal rights. Burgage-tenements are also excluded from it, the reason of which is not so obvious. Since the husband's feisin is both the measure and security of the terce, such debts or diligences alone, as exclude the husband's feisin, can prevail over it.

26. Where a terce is due out of lands burdened with a prior terce still subsisting, the second 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 disburdened of her terce, the lesser terce becomes enlarged, as if the first had never existed. A widow, who has accepted of a special provision from her husband, is thereby excluded from the terce, unless such provision shall contain a clause that she shall have right to both.

27. The widow has no title of possession, and so cannot receive the rents in virtue of her terce, till she be served to it; and in order to this, she must obtain a brief out of the chancery, directed to the sheriff, who calls an inquest, to take proof that she was wife to the deceased, and that her husband died 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 kawil, whether to begin by the sun or the shade, i.e., by the east or the west, the sheriff sets off the two first acres for the heir, and the third for the widow. Sometimes the division is executed, by giving one entire farm to the widow, and two of equal value to the heir. The widow's right is not properly constituted by this service; it was constituted before by the husband's feisin, and fixed by his death; the service only declares it; and so intitles her to the third part of the rents retro to her husband's death, preferable to any rights that may have affected the lands in the intermediate period between that and her own.

(a) In the case referred to, when treating of the effects of the dissolution of marriage within the year without a living child, and where no special provisions had been granted to, or accepted by, the widow; she did not demand her legal provisions of terce or jus relatie, but merely insisted, that as widow she was intitled to be alimented out of the heritable estate of which her husband died possessed: So that the decision in that case cannot so properly be said to be an alteration in the law, as an equitable interposition of the court of session, in their capacity as a court of equity, in order to grant a subsistence to the widow of a man whose estate was fully sufficient, and who, it could not reasonably be presumed, would have inclined that his widow should be left destitute, when his estate went perhaps to a distant series of heirs. own service. The relief, if she was reputed to be lawful wife to the deceased, must be served, notwithstanding any objections by the heir against the marriage, which may be afterwards tried by the commissary.

28. Courtesy is a liferent given by law, to the surviving husband, of all his wife's heritage in which he 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 the 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 courtesy, by an act of the law itself. As in the terce, the husband's seisin is the ground and measure of the wife's right; so in the courtesy, the wife's seisin is the foundation of the husband's; and the two rights are, in all other respects, of the same nature; if it is not that the courtesy extends to burgage holdings, and to superiorities.

30. All liferenters must use their right salva rei fulfllantia: 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. Liferenters are also subjected to the payment of the yearly cesses, stipends, &c., falling due during their right, and to all other burdens that attend the subject liferented.

32. Liferent is extinguished by the liferenter's death. That part of the rents which the liferenter had a proper right to, before his death, falls to his executors; the rest, as never having been in bonis of the deceased, goes to the heir. Martinmas and Whitunday are, by our custom, the legal terms of the payment of rent; consequently, if a liferenter of lands survives the term of Whitunday, his executors are intitled to the half of that year's rent, because it was due the term before his death; and if he survives the term of Martinmas, they have right to the whole. If the liferenter, being in the natural possession, and having first sowed the ground, should die even before Whitunday, his executors are intitled to the whole crop, in respect that both seed and industry were his. In a liferent of money constituted by a moveable bond, the executors have a right to the interest, down to the very day of the liferenter's death, where no terms are mentioned for the payment thereof; but in the case of an heritable bond, or of a money liferent secured on land, the interests of liferenter and heir (or of heir and executrix, 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.

Sect. X. Of Teinds.

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 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 pau-pers, 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 removable 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 fixed 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 fort 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 intitled to the teind of corns, made his right effectual, either by accepting of a cer- tain 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 queen Mary his mother, had procured from the beneficiaries; and even as to the teinds, though 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 secularised several abbeys and priories into temporal lordships; the grantees of which were called sometimes lords of erection, and sometimes titulants, 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 erections, 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. King 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. 259. 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 possessed 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 purfuer 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 purfuer 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 1602, c. 30.—1603, c. 23. By the last of these acts, it is also provided, 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, referred 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, referring to erection the titulars the feu-duties thereof, until payment by himself to them of 1000 merks Scots for every chaldar of feu-vicual, and for each 100 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 there 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 Teinds reviving parochial teinds in the times of Popery, some few deemable benefices remained entire in the hands of the parsons, &c. 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 fell to the proprietor, at six years purchase.

14. Some teinds are more directly subject to an allocation for the minister'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 fet it in tack, the tack-duty is allocated: this fort 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 tacksman, 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 titulares, who, as soon as a proprietor had brought an action of sale of his teinds, allocated the purser'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 purser'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 infeft in the lands, in security of the valued teind-duty. Where a tenant is, by his tack, bound to pay a joint duty to the 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 tacksman; which differs much from inhibition of lands (explained under the next section), and is intended merely to interpel or inhibit the tacksman 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 tacksman or possessor shall intermeddle after the inhibition is executed, he is liable in a spuitzie.

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.

Sect. XI. Of inhibitions.

The constitution and transmission of feudal rights, and the burdens with which they are chargeable, being now explained, 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 affecting 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 inhibition 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 No clxxxiii. 21.)

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 showing 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 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 registered; for it could not have extended to these though 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 annual renter might, after being inhibited, have effectually renounced his right to the reverer 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 sederunt of the court of session, Feb. 19, 1682, that, after intimation of the inhibition to the reverer, 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 restrained 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.

Sect. XII. 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. A full history of apprisings will be found in the beginning of Mr Erskine's large Institute under this title; it being considered as unnecessary to enter into a deduction now no longer necessary, as by the act 1672 adjudications were substituted in their place.

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 40 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 that the summons which is to be founded on the charge be not raised till after the expiry both of the year and of the 40 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 40 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 (N° clxxx. 25.) and states 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; after which, the heritable rights belonging to the ancestor will fall to be attached; in doing which, the diligence to be used is different, according to the state of the titles in the ancestor's person: for if the ancestor stood veiled by infestation, the heir must be charged to enter heir in special; but if the ancestor had but a personal right to the subjects (i.e., not perfected by fein), which would have been carried to the heir by a general service, then what is called a general special charge must be given to the heir. These charges, ei- ther special or general special, as the circumstances of the case may require, are by the statute 1540 made equivalent to the heir's actual entry; and therefore an adjudication led after the inducement of the charges are elapsed, effectually carries to the creditor the subjects to which the heir was charged to enter.

3. Appraisings in course of time underwent many changes in their form and effect, till at length, by act 1672, c. 19, adjudications were substituted in their place, and are carried on 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 insufficiency, 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 transmute thereof, renounce the possession in his favour, and ratify the decree of adjudication; and law considers the rent of the lands as precisely commensurate 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 appraised 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 appraisings; 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 60 days after the date of the decree. In every other respect, general adjudications have the same effects that appraisings 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 appraisings could not proceed before the term of payment, yet where the debtor is vergens ad inpianum, the court ex nobili officio admit adjudication for the debt before it be payable. But this fort being founded solely in equity, subsists merely as a security, and cannot carry the property to the creditor by the lapse of any length of time.

6. There are two kinds of adjudication, which took place at the same time with appraisings, and still obtain; viz., adjudications on a decree cognitionis causa, of adjudications 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 feifin, 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 granter, upon a charge to enter. Here there is no place for a legal reverberation; 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 feifin (where feifin is necessary), or exact diligence for obtaining feifin, are preferable pari passu. The year and day runs from the date of the adjudication, and not of the feifin or diligence, for obtaining it. After the days of that period, they are preferable according to their dates. All the co-adjudgers within the year are preferable pari passu, as if one adjudication had been led for all their debts. This makes the feifin or diligence on the first adjudication a common right to the rest, who must therefore 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 No. clxix. 15.); nor does it take place in adjudications in implement.

A new sort of adjudication has been lately introduced into the law of Scotland by the act of the 23rd Geo. III. for rendering the payment of the creditors of insolvent debtors more equal and expeditious. Amongst the many other provisions in that statute for expediting the payment of creditors, and lessening the expense of diligence against the debtor's estate, it is enacted, That upon an order from the court of session or lord ordinary, the bankrupt shall be bound to execute a disposition or dispositions, making over to the trustees or trustees chosen by the creditors the whole estate real and personal, wherever situated; and in case... of the bankrupt's refusal, or of the order not being complied with from any other reason, the court or the lord ordinary shall, upon the application of the trustee, issue an act or decree, adjudging the property of the whole sequestrated estate to be in the trustee for behoof of the creditors; which shall have the same effect as if the bankrupt had executed the conveyance; and by a subsequent clause in the statute, it is enacted, that this disposition of the heritable estate, together with the order of the court or lord ordinary on which it proceeds, or, failing thereof, the decree of adjudication of the court or the lord ordinary, shall within 60 days of the date thereof be registered in the register of abbreviated adjudications; and shall have the effect to intitle the trustee for behoof of the whole creditors to rank in the same manner upon the heritable estate as if it had been a proper decree of adjudication, obtained at the date of the interlocutor awarding the sequestration; accumulating the whole debts, principal and interest, as at that period, and adjudging for security or payment thereof, so as to rank pari passu with any prior effectual adjudication, and within year and day of the same. By this act also, in order to lessen the number of adjudications, and consequently the expense upon a bankrupt estate, it is declared, that intimation shall be made of the first adjudication which is called, so as all creditors who are in readiness may, within such a reasonable time as may be allowed, not exceeding twenty februent days, produce their grounds of debt, and be conjoined in the decree to follow on said first adjudication. At the same time it may be proper to mention, that this act is only temporary; and after eight years experience, will probably suffer very considerable alterations, when it shall become necessary to digest another bankrupt law for Scotland.

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 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 invested 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 habituates 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 behoof, 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 the best right to them. Judicial factors are entitled to a salary, which is generally stated at five per cent. of their intromissions; 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 februent, Feb. 12, 1730.

As to sequestrations under the bankrupt act before recited, the reader must necessarily be referred to the act itself; for being only temporary, as before mentioned, it seems quite inconsistent with the plan of this work to enter into a minute detail of the different regulations thereby laid down in cases of sequestration under it.

12. The word bankrupt is sometimes applied to persons whose funds are not sufficient for their debts; and bankrupts sometimes, not to the debtor, but to his estate. The courts 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 No. clxxxiii. 3. By the late bankrupt act, the sale may precede the ranking of the creditors, unless the court, upon application of the creditors, or any of them, shall find sufficient cause to delay the sale. The irredeemable property of the lands is adjudged by the court to the highest of... ferer 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 confignation of it. By the act 1695, purchasers were bound to confign the price in the hands of the magistrates of Edinburgh; but by § 5. of the above act, they may confign it in the royal bank or bank of Scotland. The only remedy provided to such creditors as judge themselves hurt by the sale or 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 deburred by the factor out of the rents in his hands; by which the 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 excrecence of the price, after payment of the creditors; but if there be no excrecence, the creditors, who alone are gainers by the sale, ought to bear the charge of it.

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 has become litigious by the process of ranking.

II. MOVEABLE RIGHTS.

The law of heritable rights being explained, Move-

able Rights fall next to be considered; the doctrine of which depends chiefly on the nature of Obligations.

Sect. XIII. Of obligations and contracts in general.

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, intitles 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, (1.) Merely natural, where Division of one person is bound to another by the law of nature, obligations 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 statuit credit, 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 credit) till the condition be purified, because it is possible the condition may never 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. tion 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 up, on the view of a certain event, must be restored, if that event does not afterwards exit; 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, (1.) 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 petit 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 one of those called by the Romans unilateral, being 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. Comodate is a species of loan, gratuitous on the part of the lender, where the thing lent may be used, dated, 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 adhibit 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. Hence it will appear that this is a bilateral contract; the borrower 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 defrayed 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 delivery, 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 also a bilateral 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 redemanded, he is accountable even for casual misfortunes. He is intitled 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 pactio, 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 itabler, 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... 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 item*.

12. Sequestration, whether voluntarily consented to by the parties, or authorised by the judge, is a kind of 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. Consignation 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 consigned money lies on the consigner, where he ought to have made payment, and not consignation; or has consigned only a part; or has chosen for consignatory, 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 consignation became necessary. It is the office of a consignatory, 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 consigner.

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 redelivered 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. Trademen 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. This, however, must not now be understood to apply universally; for the court of session, in different cases which lately occurred before them, and founding upon the law and practice of England in similar cases, have found, that no hypothec exists for the expense of repairs done in a home port. Owners of ships have an hypothec on the cargo for the freight; heritors on the fruits of the ground; and landlords on the *improba et illata*, 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 debursements. A creditor cannot, for his own payment, sell the subject impignorated, 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.

**Sect. XIV. 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, tho' 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 exhibited, law gives both parties a right to refuse, as from an unfinished bargain; which is called *locus penitentiae*. If, upon a verbal bargain of lands, part of the price shall be paid by him who was to purchase, the *interventus 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 *patent 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 exhibited, 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 solemnities were executed by the party, appending his seal to them of written in presence of witnesses. For preventing frauds that obligations 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 consequences 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 witness 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 docket 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 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 setting clause express 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 registration. 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 of 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. These duties must all be paid before wrote upon, under a penalty; but they are so numerous and complex, that it would be tedious, even if it fell under our plan, to enter into an enumeration of them. They will be found at length in Swinton's Abridgement, *voc. Stamps*, to which the reader is referred. Certain judicial deeds, such as bail-bonds, bonds of cautionry, in suspensions, &c., are excepted, and do not require stamps, as will be seen from the several acts referred to by the compiler of the above abridgement of the statutes.

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 acknowledgements.

2. Testaments, if executed where men of skill and 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 rectitude, or ignorance in business. 4. Millre letters in re mercatura, commissions, and fitted accounts in the course of trade, and bills of exchange, though they are not holographs, 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 directs 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, iniquities 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 and obligations appear 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 defined, 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 accepter: Yet it is insufficient 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 accepter. 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 assignment, 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 accepter from second payment to the indorsee; hence, also, no ground of compensation competent to the accepter against the original creditor can be pleaded against the indorsee: but, if the debtor shall prove, by the oath of the indorsee, either that the bill is indorsed to him for the indorsee's own behalf, or 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. A protested bill, after registration, cannot be transmitted by indorsement, but by affixation.

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 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 non-acceptance or non-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, tho' he should not take a formal protest for non-payment, if, within a reasonable time, he shall give the indorser notice of the accepter'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 tho' 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; or 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.

17. The privileges superadded to bills by statute are, Privileges that though, by their form, they can have no clause of bills by registration, yet, if duly protested, they are registrable statute within six months after their date in case of not acceptance, or in six months after the term of payment in the case of non-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 accepter in the case of non-payment. This is extended to inland bills, i.e., bills both drawn and inland bills made payable in Scotland. After acceptance, summary diligence lies against no other than the accepter; 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 not bills; for bills are intended for currency, and not to privileged lie as a security in the creditor's hands. Bills are not valid which appear ex facie to be douations. 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 attached, or with a clause of interest from the date, is null. Inland precepts drawn, not for money the medium of trade, but for fugitives, are null, as wanting writer's name and witnesses. It is not an agreed point whether promissory notes, without writer and witnesses, unless holograph, are probative.

19. So stood the law of Scotland, in regard to bills and late promissory notes, previous to the statute 12 Geo. III. actions as to By that statute, however, the law of Scotland has bills and undergone very material alterations. They are de- promissory clared to have the same privileges, and to prescribe in notes. fix years after the term of payment. Bank notes and post bills are excepted from this prescription: nor does it run during the years of the creditor's minority. Inland bills and promissory notes must be protested within the days of grace, to secure recourse; and the dishonour notified within 14 days after the protest. Summary diligence may pass not only against the acceptor, but likewise against the drawer, and all the indorsees jointly and severally; and at the instance of any in- dorsee, though the bill was not protested in his name, upon his producing a receipt or letter from the protesting dorsee. This act was in force only for seven years after 15th May 1772, and to the end of the then next session of parliament. But as it was found by experience, that it had been of great advantage to Scotland, it was made perpetual by the late act 23 Geo. III. so that it has now become a permanent part of the law of Scotland.

20. 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 so 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 in obligations to convey heritage. Conveyances themselves, however, of heritable subjects, must be perfected according to the law of the country where the heritage lies, and from which it cannot be removed.

21. A writing, while the granter keeps it under his own power of 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 granter and grantee, is presumed to have been put in his hands as doer 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 into writing. A deed appearing in the custody of the grantee himself, is considered as his absolute right; in 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.

What 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, post-nuptial 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 which the granter lays 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 contractors. Lastly, the publication of a writing by registration, is equivalent to delivery.

Sect. XV. Of obligations and contracts arising from consent, and of accessory obligations.

Contracts consensual, 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 sale to give something to another, in consideration of a certain price in current money to be paid for it. Things confining 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 not delivery, if the buyer knew the goods were run. So far indeed has this principle been carried, and so anxious have our judges been to put a stop to the practice of smuggling, that in different cases which have occurred of action being brought at the instance of a foreign merchant against persons resident in Scotland for payment of goods which had been smuggled, a distinction has been made betwixt the case of the foreign merchant being or not being a native of Scotland. Where the foreign merchant was a native of Scotland, it has been presumed that he was acquainted with the revenue law of the country, and that he was in a manner versans in re illicita; and therefore action has been denied for recovery of the price of such goods: but where, on the other hand, the foreign merchant was not a native of Scotland, no ways amenable to, and even presumed ignorant of, its laws, he has with justice been allowed action for the price of such goods, unless it were shown that he had in fact been participes criminis, by aiding the smuggle. The same principle has regulated the decisions in the courts of England in cases of a similar nature, which have within these few years come before them.

3. Though this contract may be perfected before delivery of the subject, the property remains till then with the vender: (See No. clxii. 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 unskillfulness, 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 entitled 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 entitled 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 which the partners make one of another; and so is not confounded 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 entitled 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 loss, without being entitled to any share of the profits, called by the Romans societas leonina, is justly reproved. All the partners are entitled to shares of profit and loss proportioned to their several stocks, where it is not otherwise covenanted.

6. As partners are united, from a delective person, 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 common 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, 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 monetary 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 defense, 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 movables as may 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 (by act 1693) to continue after the death of either the granter or grantee. Deeds which contain a clause or mandate for registration, are for the fame 12. The favour of commerce has introduced a tacit mandate, by which matters of ships are impowered to contract in name of their exercitors 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 exercitors, or should be substituted by the master in the direction of the ship without their knowledge. Exercitors 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 exercitors, they are liable singulis 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 initiators whom he sets 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 attributed 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 which by its nature either obliges him to the other party, or the other party to him. Under this clas may be reckoned tutory, &c. the entry of an heir, negotiorum gestio, indebiti soluto, communion of goods between two or more common proprietors, and mercurium jactus levando navis caufa. 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 intrusions with interest. On the 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 soluto, 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 (condictio indebiti.) This action does not lie, (1.) If the sum paid was due ex agitate, or by a natural obligation; for the obligation to restore is founded solely in equity. (2.) If he who made the payment knew that nothing was due; for qui consulto dat quod non debet, presumitur donare.

16. Where two or more persons become common proprietors of the same subject, either by legacy, gift, or purchase, without the view of copartnership, 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 superfice is only divided, without prejudice to the property. Commoties belonging to the king, or to royal boroughs, are not divisible. Lands lying runrigs, 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 de jure 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 estimation. 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 fort which are saved shall be afterwards sold for.

18. There are certain obligations which cannot be satisfied by themselves, but are accretions to, or make obligations, part of, other obligations. Of this fort 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 discussing 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 *ad latus 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, (1.) 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 distrefted for it; except, 1st, Where the debtor is expressly bound to deliver to the cautioner his obligation cancelled, against a day certain, and has failed; or, 2dly, Where the debtor is *vergens ad inopiam*; 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 the principal debtor, in a bond in which a cautioner is bound, grants bond of corroboration with a new cautioner, both cautioners, as they intervene for the same debt, and at the desire of the same debtor, have a mutual relief against each other; but where the cautioner in the first bond signs as a principal obligant in the corroboration, the cautioner in the new bond, it would seem, would be entitled to a total relief against the first cautioner. At the same time, the decisions of the court of session are not perfectly at one upon this branch of the doctrine of cautionry.

23. Cautionry is also *judicial*, as in a suspension. It is sufficient to loofe the cautioner, that when he became bound, the suspender had good reason to suspend, e.g., if the chargor 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 *judicis falsi et judicatum solvi*: such cautioner gets free by the death of the defender before sentence; but he continues bound, though the cause should be carried from the admiral to the court of session. This sort of caution is only to be exacted in causes strictly maritime.

24. It happens frequently, that a creditor takes two or more obligants bound to him, all as principal debtors, without fidejussion. Where they are so bound, for the performance of facts that are in themselves indivisible, they are liable each for the whole, or *singuli in solidum*. But, if the obligation be for a sum of money, they are only liable *pro rata*; unless,

(1.) Where they are in express *ords bound conjunctly and severally*; or, (2.) In the case of bills or promissory notes. One of several obligants of this sort, who pays the whole debt, or fulfils the obligation, is intitled to a proportional relief against the rest; in such manner, that the lots must, in every case, fall equally upon all the solvent obligants.

25. Obligations for sums of money are frequently accompanied with an obligation for the annual rent or interest thereof. *Interest* (*usura*) is the profit due by the debtor, of a sum of money to the creditor for the use of it. The canon law considered the taking of interest as unlawful: the law of Moses allowed it to be exacted from strangers; and all the reformed nations of Europe have found it necessary, after the example of the Romans, to authorize it at certain rates fixed by statute. Soon after the reformation, our legal interest was fixed at the rate of 10 per cent. per annum; from which time it has been gradually reduced, till at last, by 12 Ann. flat. 2, c. 16, it was brought to five per cent. and has continued at that rate ever since.

26. Interest is due, either by law or by pactum. It is due by law, either from the force of statute, under which may be included acts of federunt, or from the nature of the transaction. Bills of exchange, and inland bills, though they should not be protested, carry interest from their date in case of not acceptance; or from the day of their falling due, in case of acceptance and not payment. Where a bill is accepted, which bears no term of payment, or which is payable on demand, no interest is due till demand be made of the sum, the legal voucher of which is a notarial protest. Interest is due by a debtor after declaration, for all the sums contained in the diligence, even for that part which is made up of interest. Sums paid by cautioners on distress carry interest, not only as to the principal sum in the obligation, but as to the interest paid by the cautioner. Factors named by the court of session are liable for interest, by a special act of federunt; see N° clxxii. 11.

27. It arises *ex lege*, or from the nature of the transaction, that a purchaser in a sale is liable in interest for the price of the lands bought from the term of his entry, though the price should be arrefted in his hands, or though the seller should not be able to deliver to him a sufficient progress or title to the lands; for no purchaser can in equity enjoy the fruits of the lands, while at the same time he retains the interest of the price: but lawful confignation of the price made by a purchaser, upon the refusal of the person's having right to receive it, stops the currency of interest. Where one intermeddles with money belonging to another which carries interest, he ought to restore it *cum omnibus obventione et caufa*; 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 *pactum*, 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. 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 pactum: Thus, where interest upon a debt is by a letter promised for time past, such promise implies a pactum for interest as long as the debt remains unpaid; thus also, the use of payment of interest preludes a pactum, 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 No cclxxii. 2.) 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 fuit imprastabilis subit damnum et interesse.

30. An obligation, to which a condition is attached, 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 fertipia, (1.) 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 betwixt 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 promissio. The Roman law intitled all donors to the beneficium competens, i.e., 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 predecessor. 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 cocher, 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 pactum 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.

Sect. XVI. Of the dissolution or extinction of obligations.

Obligations may be dissolved by performance or extinction, 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, 1st, To interest, or to sums not bearing interest. 2dly, To the sums that are least secured, if the debtor thereby incurs no rigorous penalty. But, 3dly, If this application be penal on the debtor, e.g. by suffering the legal of an adjudication to expire, the payment will be applied so 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 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 for which he had made no prior satisfaction. 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 facta, 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 cæ. This doctrine applies also to general affigations. 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 precedings. 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 debit 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, constituted by the oath of the debtor, the compensation, after it is admitted by the judge, operates retro, in so far as concerns the currency of interest, to the time when, 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 fulspection 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 defrayed or work employed on the subject retained, and so arises from the mutual obligations incumbent on the parties. It has never been disputed that retention of goods was competent, until payment or satisfaction of the debt incurred in relation to these goods; but it was found by the court of session, in a case which was very lately before them, that goods could not be retained by a manufacturer until payment of a prior debt; the debt incurred upon the goods in his hand being offered; and although the debtor had become bankrupt, and the manufacturer must otherwise rank as a common creditor for his prior debt. 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 the 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 confusion, where the By confusion, Sect. XVII. Of Assignations.

Heritable rights, when they are cloathed with intestate, are transmitted by disposition, which is a writing containing proscriptory of resignation and precept of seisin; but those which either require no seisin, or on which seisin has not actually followed, are transmissible by simple assignation. He who grants the assignation is called the cedent; and he who receives it, the assignee or cessionary: if the assignee conveys his right to a third person, the deed of conveyance 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 so proper to the wife, that a general assignation, by her to her husband, of all that did or should belong to her at her decease, does not comprehend them. A different 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 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 possessionis, (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 effects of right of the subject conveyed, as it was in the cedent; assignments and 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 a 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.

Sect. XVIII. Of arrestments and poindings.

The diligences, whereby a creditor may affect his debtor's moveable subjects, are arrestment and poinding. 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, tho' 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 proceeds 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 seisin 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 adquirienda as well as adquiritia, 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 retrospect 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 affectable 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. It has also been found, that a wadset sum consigned after an order of redemption used, but before decreet of declarator, is not arrestable.

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. As the law formerly stood, an arrestment used at the market crofs of Edinburgh, pier and shore of Leith, against a person further of the kingdom, was good; so that if the arrestee made payment to his creditor after the date of the arrestment, he was found liable in second payment to the arrestor, because he had done all in his power to notify his diligence. This, however, is very properly altered by § 3. of the act of the 23d Geo. III. which declares, that an arrestment used at the market crofs of Edinburgh, pier and shore of Leith, in the hands of any person out of the kingdom, without other sufficient notification, shall not interpell the arrestee from paying bona fide to the original creditor. 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 latter 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 medico. Far less is arrestment lost, either by the death of the arrestee, 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 arrestor for his debt in the event it shall be found due. Arrestment founded on decrees, or on registered 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 registered 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 arrestor's security; yet the arrestor may, while the subject continues with the arrestee, pursue him in a forthcoming, notwithstanding the loosing.

7. Arrestment is only an inchoated or begun diligence; to perfect it, there must be an action brought on arrestment by the arrestor 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 arrestor must be liquidated; for the arrestor can be no further intitled 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 to sale, and the price to be delivered to the pursuer. So that, in either case, decrees of forthcoming are judicial assignments to the arrestor 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 arrestee shall neglect to insist in an action of forthcoming for such a time as may be reasonably construed into a defertion of his 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 arrefter 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.

By act 23d Geo. III. § 2. it is enacted, that when a debtor is made bankrupt, in terms of the act 1696, as thereby extended (clxxxiii. 13.), all arrestments which shall have been used for attaching any personal effects of such bankrupt within thirty days prior to the bankruptcy, or within four calendar months immediately subsequent, shall be pari passu preferable: and in order to save as far as possible the expense of a multiplicity of arrestments, it is declared, that where the effects of a debtor are arrested by any creditor within thirty days before the bankruptcy, or within four months after it, and a process of forthcoming or multiplepointing is brought in which such arrestment is founded on, it shall be competent for any other creditor producing his interest, and making his claim in the said process, at any time before the expiration of the said four months, to be ranked in the same manner as if he had used the form of arrestment; the expense of raising the process, and of the diligence at the instance of the creditor who raises it, being always paid out of the common fund. We here again repeat, that the enactments of this statute are only temporary, and not yet a permanent part of the law of Scotland, whatever they may become when the subject is resumed by the legislature upon the expiry of the act.

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 arrefter 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 following does not fall under this rule.

12. In the execution of pointing, the debtor's goods must be appraised, first, on the ground of the lands, where they are laid hold on, and a second time at the market-cross of the jurisdiction, by the stated appraisers thereof; or, if there be none, by persons named by the messenger or other officer employed in the diligence. Next, the messenger must, after public intimation by three o'clogs, declare the value of the goods according to the second appraisement, 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, confirmation 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 appraised value, to the utter 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 appraisement on the ground of the lands, and landlords were always in use to point so, for their rents. Appraisement of the goods at the market-cross of the next royal borough, or even of the next head-borough of stewartry 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 in between sun-rising and sun-setting; or at least it must be finished before the going off of day-light.—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 falsi, or groundless pretences, is liable, both criminally, in the pains of deforcement (see No clxxxvi. 15.), and civilly, in the value of the goods which might have been pointed by the creditor.

By the foresaid statute 23d Geo. III. § 4. it is declared, that after a person is rendered bankrupt, as thereby directed, no pointing of the moveables belonging to such bankrupt, within 30 days before his bankruptcy, or within four calendar months thereafter, shall give a preference to such pointer over the other lawful creditors of the bankrupt; but the goods so pointed shall be considered as in medio, and the person receiving the price of them shall be liable to make the same forthcoming, so as that all the other creditors of the bankrupt who are possessed of liquidated grounds of debt or decrees for payment, shall be intitled to their proportion of the same; provided they make their claim by summoning the pointer at any time before the expiration of the said four months, deducting always the expense of such pointing from the first end of the price of such goods, together with 20 per cent. on the appraised value, which the pointer shall retain to account of his debt in preference to the other creditors; referring liberty to him to rank on the remaining sum for the full amount of the debt contained in his diligence. And it is by the said act further declared, that where any person concerned in trade or manufactures is bankrupt, as before mentioned, it may be lawful for any creditor, to the amount of L. 100, or any two creditors to the amount of L. 150, or any three or more creditors to the amount of L. 200 or upwards, to apply for sequestration of the estate real and personal belonging to the debtor: after awarding which, an interim factor, and then a trustee, shall be chosen by the creditors, who is to conduct the business of the sequestration, according to the various rules fixed and laid down by the statute. The act, however, expressly excludes all others, except those concerned in trade or manufactures, from the benefit of the sequestration; but it is probable, when it comes to be renewed or digested in another form, this part of it will suffer an alteration.

Sect. XIX. Of Prescription.

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 ufacapio. The acquisition of property (it should rather be, when applied to our law, the securing it against all further challenge) by the possessor's continuing his possession for the time which law has declared sufficient for that purpose: negative, is the loss or omission of a right, by neglecting to follow it forth, or use it, during the whole time limited by law. The doctrine of prescription, which is, by some writers, condemned as contrary to justice, has been introduced, that the claims of negligent creditors might not subsist for ever, that property might be at last fixed, and forgeries discouraged, which the difficulty of detecting must have made exceeding frequent, if no length of time had limited the legal effect of writings.

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 intestments, for 40 years continually after their dates, shall not thereafter be disquieted in his right by any person pretending a better title. Under heritages are comprehended every right that is fundo annexum, and capable of continual possession. Continued possession, if proved as far back as the memory of man, presumes possession upwards to the date of the intestment. The whole course of possession must by the act be founded on seisin; and consequently no part thereof on the bare right of apparenzy: but 40 years possession, without seisin, is sufficient in the prescription of such heritable rights as do not require seisin. The possession must also be without any lawful interruption, i.e., it must neither be interrupted via facti, nor via juris. The prescription of subjects not expressed in the intestment as part and pertinent of another subject specially expressed, has been explained, No clxvii. 6.

The act requires, that the possessor produce, as his title of prescription, a charter of the lands preceding the 40 years possession, with the seisin following on it: and where there is no charter extant, se- 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 20 years.

7. Ministers stipends and multures prescribe in five years after they are due; and arrears of rent, five years after the tenant's removing from the lands. As the prescription of mails and duties was introduced in favour of poor tenants, that they might not suffer by neglecting to preserve their discharges, a proprietor of lands subject to a liferent, who had obtained a lease of all the liferented lands from the liferentor, is not entitled to plead it, nor a tacksmen of one's whole estate, who had by the lease a power of removing tenants. Bargains concerning moveables, or sums of money which are proveable by witnesses, prescribe in five years after the bargain. Under these are included sales, locations, and all other consensual contracts, to the constitution of which writing is not necessary. But all the abovementioned debts, may, after the five years, be proved, either by the oath or the writing of the debtor; or of which above, (par. 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 creditor, at his receiving the bond. But all diligence used within the seven years against the cautioner shall stand good. As this is a public law, intended to prevent the bad consequences of rash engagements, its benefit cannot, before the lapse of the seven years, be renounced by the cautioner. As it is correcory, it is strictly interpreted: Thus, bonds bearing a mutual clause of relief pro rata, fall not under it; nor bonds of corroboration, nor obligations, where the condition is not purified, or the term of payment not come within the seven years; because no diligence can be used on these. The statute excludes all cautionaries for the faithful discharge of offices; these not being obligations in a bond or contract for sums of money. And practice has denied the benefit of it to all judicial cautioners, as cautioners in a suspension.—Actions of count and reckoning, competent either to minors against their tutors or curators, or vice versa, prescribe in ten years after the majority or death of the minor.

9. Holograph bonds, missive letters, and books of account, not attested by witnesses, prescribe in 20 years, unless the creditor shall thereafter prove the verity of the subscription by the debtor's oath. It is therefore sufficient to save from the effect of this prescription, that the constitution of the debt be proved by the party's oath after the 20 years; whereas, in stipends, merchants accounts, &c. not only the constitution, but the subsistence of the debt, must be proved by writing or the debtor's oath, after the term of prescription. Some lawyers extend this 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 for ever lost, if not exercised within the time limited; yet where action was brought on any of those debts, before the prescription was run, it subsisted, like any other right, for 40 years. As this defeated the purpose of the acts establishing these prescriptions, all processes upon warnings, spoliances, 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 No. clxxxiii. 26.

10. Certain obligations are lost by the lapse of less than 40 years, without the aid of statute, where the nature of the obligation, and the circumstances of the parties, justify it: thus, bills which are not intended for lasting securities, produced no action, where the creditor had been long silent, unless the subsistence of the debt be proved by the debtor's oath; but the precise time was not fixed by practice. But the duration of bills is now limited to six years by the 1 Geo. III.; rendered perpetual by 23 Geo. III. Thus also, a receipt for bills granted by a writer to his employer, not insisted upon for 23 years, was found not productive of an action. The prescriptions of the restitution of minors, of the benefit of inventory, &c. are explained in their proper places.

11. In the positive prescription, as established by Bona fides the act 1617, the continued possession for 40 years, proceeding upon a title of property not chargeable with falsehood, secures the possessor against all other grounds of challenge, and so precludes bona fides, presumptione juris et de jure. In the long negative prescription, bona fides in the debtor is not required: the creditor's neglecting to insist for so long a time, is construed as an abandoning of his debt, and so is equivalent to a discharge. Hence, though the subsistence of the debt should be referred to the debtor's own oath, after the 40 years, he is not liable.

12. Prescription runs de momento in momentum: the prescription whole time defined by law must be completed, before a right can be either acquired or lost by it; so that if interruption, made on the last day of the 40th year, runs, breaks its course. The positive prescription runs against the sovereign himself, even as to his annexed property; but it is generally thought he cannot suffer by the negative: he is secured against the negligence of his officers in the management of processes, by express statute, 1600, c. 14. The negative, as well as the positive prescription, runs against the church, though churchmen have but a temporary interest in their benefices. But because the rights of beneficiaries to their stipends are liable to accidents, through the frequent change of incumbents, 13 years possession does, by a rule of the Roman chancery which we have adopted, found a presumptive title in the beneficiary: but this is not properly prescription; for if by titles recovered, perhaps out of the incumbent's own hands, it shall appear that he has possessed tithes or other subjects to a greater extent than he ought, his possession will be restricted accordingly. This right must not be confounded with that established in favour of churchmen, which is confined to church lands and rents, and constitutes a proper prescription upon a possession of 30 years.

13. The clause in the act 1617, saving minors from prescription, is extended to the positive, as well as to the negative prescription; but the exception of minority is not admitted in the case of hospitals for children, where there is a continual succession of minors, that being a causus infelicitatis. Minors are expressly excepted in several of the short prescriptions, as 1579, c. 18.—1669, c. 9.; but where law leaves them in the common case, they must be subject to the common rules.

14. Prescription does not run contra non valentem agere, against one who is barred, by some legal incapacity, from pursuing; for in such case, neither negligence nor dereliction can be imputed to him. This rule is, by a favourable interpretation, extended to wives, who ex reverentia maritali forbear to pursue actions competent to them against their husbands. On the same ground, prescription runs only from the time that the debt or right could be sued upon. Thus, inhibition prescribes only from the publishing of the deed granted to the inhibitor's prejudice; and in the prescription of removing, the years are computed only from the term at which the defender is warned to remove. Neither can prescription run against persons who are already in possession, and so can gain nothing by a pursuit. Thus, where a person, who has two adjudications affecting the same lands, is in possession upon one of them, prescription cannot run against the other during such possession.

15. Certain rights are incapable of prescription:

(1.) Things that law has exempted from commerce.

(2.) Res merae 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 elding an action, cannot prescribe, unless the exception is founded on a right productive of an action, e.g. compensation; such right must be insisted on within the years of prescription.

(4.) Obligations of yearly pensions or payments, though no demand has been made on them for 40 years, do not suffer a total prescription, but still subsist as to the arrears fallen due within that period; because prescription cannot run against an obligation till it be payable, and each year's pension or payment is considered as a separate debt.

16. No right can be lost non utendo by one, unless the effect of that prescription be to establish it in another. Hence the rule arises, juri sanguinis nunguam 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 40 years, are lost to the proprietor, superior, or titular.

17. Prescription may be interrupted by any deed whereby the proprietor or creditor uses his right or ground of debt. In all interruptions, notice must be given to the possessor of the subject, or the debtor, that the proprietor or creditor intends to sue upon his right. All writings whereby the debtor himself acknowledges the debt, and all processes for payment brought, or diligences used against him upon his obligation, by 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 40 years. It has been found, that the vexatious prescription of bills is not interrupted by a blank citation, as practised in the court of admiralty. Citations for interrupting the prescription of real rights must be given by messengers; and the summonses, on which such citations proceed, must pass the signet upon the bill, and be registered within 60 days after the execution, in a particular register appointed for that purpose; and where interruption of real rights is made via facti, an instrument must be taken upon it, and recorded in the said register; otherwise it can have no effect against singular successors.

19. Interruption has the effect to cut off the course of prescription, so that the person prescribing can avail himself of no part of the former time, but must begin a new course, commencing from the date of the interruption. Minority, therefore, is no proper interruption; for it neither breaks the course of prescription, nor is it a document or evidence taken by the minor on his right; it is a personal privilege competent to him, by which the operation of the prescription is indeed suspended during the years of minority, which are therefore discounted from it; but it continues to run after majority, and the years before and after the minority may be conjoined to complete it. The same doctrine applies to the privilege arising from one's incapacity to act.

20. Diligence used upon a debt, against any one of two or more co-obligants, preserves the debt itself, and so interrupts prescription against all of them; except in the special case of cautioners, who are not affected by any diligence used against the principal debtor. In the same manner, a right of annual rent, constituted upon two separate tenements, is preserved as to both from the negative prescription, by diligence used against either of them. But whether such diligence has also the effect to hinder the possessor of the other tenement by singular titles from the benefit of the positive prescription, may be doubted. III. Of Succession.

Sect. XX. 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 destination. 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, defendants among these, sons are preferred to daughters, and the eldest son to all the younger. Where there are daughters only, they succeed equally, and are called heirs-portioners. Failing immediate defendants, grandchildren succeed; and in default of them, great-grandchildren; and so on in infinitum: preferring, as in the former case, males to females, and the eldest male to the younger.

2. In the succession of heritage, the heirs at law are otherwise called heirs general, heirs whatsoever, or heirs of line; and they succeed by the right of blood, in the following order. First, defendants among these, sons are preferred to daughters, and the eldest son to all the younger. Where there are daughters only, they succeed equally, and are called heirs-portioners. Failing immediate defendants, grandchildren succeed; and in default of them, great-grandchildren; and so on in infinitum: preferring, as in the former case, males to females, and the eldest male to the younger.

3. Next after defendants, collaterals succeed; among whom the brothers german of the deceased have the first place. But as, in no case, the legal succession of heritage is, by the law of Scotland, divided into parts, unless where it descends to females; the immediate younger brother of the deceased excludes the rest, according to the rule, heritage descends. Where the deceased is himself the youngest, the succession goes to the immediate elder brother, as being the least deviation from this rule. If there are no brothers german, the sisters german succeed equally; then brothers consanguinean, in the same order as brothers german; and failing them, sisters consanguinean equally. Next, the father succeeds. After him, his brothers and sisters, according to the rules already explained; then the grand-father; failing him, his brothers and sisters; and so upwards, as far back as propinquity can be proved. Though children succeed to their mother, a mother cannot to her child; nor is there any succession by our law through the mother of the deceased; in so much that one brother uterine, i.e., by the mother only, cannot succeed to another, even in that estate which flowed originally from their common mother.

4. In heritage there is a right of representation, by which one succeeds, not from any title in himself, but in the place, and as representing some of his deceased ascendants. Thus, where one leaves a younger son, and a grandchild by his eldest, the grandchild, though farther removed in degree from the deceased than his uncle, excludes him, as coming in place of his father the eldest son. Hence arises the distinction between succession in capita, where the division is made into as many equal parts as there are capita or heirs, which is

5. In the succession of heirs-portioners, indivisible succession rights, e.g., titles of dignity, fall to the eldest filter, of heirs-portioners. A single right of superiority goes also to the eldest; for it hardly admits a division, and the condition of the vassal ought not to be made worse by multiplying superiors upon him. Where there are more such rights, the eldest may perhaps have her election of the best; but the younger sisters are intitled to a 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. A praecipuum, however, is due only in the case of succession of heirs portioners ab initio; and therefore there is no place for it where the succession is taken under a deed.

6. Those heritable rights, to which the deceased did heir of himself succeed as heir to his father or other ancestor, conquit, get sometimes the name of heritage in a strict sense, in opposition to the feuda novar, or feus of conquit, which he had acquired by singular titles, and which descend, not to his heir of line, but of conquit. 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 conquit 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 conquit. An estate disposed by a father to his eldest son, is not conquit in the son's person, but heritage; because the son would have succeeded to it, though there had been no disposition. The heir of conquit succeeds to all rights affecting land, which require seisin to perfect them. But tends go to the heir of line; because they are merely a burden on the fruits, not on the land. Tacks do not fall under conquit, because they are complete rights without seisin; nor personal bonds taken to heirs excluding executors.

7. The heir of line is intitled to the succession, not only of subjects properly heritable, but to that sort of moveables called heirship, which is the best of certain kinds. This doctrine has been probably introduced, that the heir might not have an house and estate to succeed to, quite dismantled by the executor. In that sort which goes by pairs or dozens, the best pair or dozen is the heirship. There is no heirship in fugitives, or things estimated by quantity; as grain, hay, current money, &c. To intitle an heir to this privilege, the deceased must have been either, (1.) A prelate; (2.) A baron, baron, i.e., who stood infest at his death in lands, tho' not erected into a barony; or even in a right of annual rent: Or, (3.) A burgess; not an honorary one, but a trading burgess of a royal borough, or at least one entitled to enter burgesses in the right of his ancestor. Neither the heir of conquest, nor of tailzie, has right to heirship-moveables.

8. As to succession by destination, no proprietor can settle any heritable estate, in the proper form of a testament; not even bonds excluding executors, tho' these are not heritable ex sua natura: But, where a testament is in part drawn up in the style of a deed inter vivos, such part of it may contain a settlement of heritage, though executors should be named in the testamentary part. The common method of settling the succession of heritage is by disposition, contract of marriage, or simple procuratory of resignation: and, tho' a disposition settling heritage should have neither precept nor procuratory, it founds an action against the heir of line to complete his titles to the estate; and thereafter divest himself in favour of the disponee. The appellation of tailzie, or entail, is chiefly used in the case of a land estate, which is settled on a long series of heirs substituted one after another. The person first called in the tailzie, is the institute; the rest, the heirs of tailzie, or the substitutes.

9. Tailzies, when considered in relation to their several degrees of force, are either, (1.) Simple destinations: (2.) Tailzies with prohibitory clauses. (3.) Tailzies with prohibitory, resolutive, and irritant clauses. That is a simple destination, where the persons called to the succession are substituted one after another, without any restraint laid on the exercise of their property. The heirs, therefore, succeeding to such estate, are absolute 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 forts, 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 inferent. They were first explicitly authorized 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 tailzie, even without these requisites, is effectual against the heir of the grantor, or against the institute who accepts of it. It has been found, that an entail, tho' completed by intestate before the act 1685, was ineffectual, because not recorded in terms of the act.

12. An heir of entail has full power over the entailed estate, except in so far as he is expressly fettered; and as entails are an unfavourable restraint upon pro-entail, their perty, and a frequent snare to trading people, they are powers and strictissimi juris: so that no prohibition or irritancies restrictions are to be inferred by implication. By 10 George III, c. 51, heirs of entail are intitled (notwithstanding any restrictions in the deed of entail) to improve their estates by granting leases, building farm-houses, draining, inclosing, and excambing, under certain limitations, and to claim repayment of three-fourths of the expense from the next heir of entail.—This act extends to all tailzies, whether made prior or posterior to the 1685.

13. An heir, who counteracts the directions of the Contraven-tailzie, by aliening any part of the estate, charging it by with debt, &c. is laid to contravene. It is not the ferred, simple contracting of debt that infers contravention; the lands entailed must be actually adjudged upon the debt contracted. An heir may, where he is not expressly barred, settle rational provisions on his wife and children, without incurring contravention. It is not quite clear whether the heirs also of the contravener would forfeit their right from the acts or deeds of their predecessor where there is no express clause in the entail settling it; and though the words of the act 1685 (which declares, that entails executed according to the directions of it, shall be effectual not only against the contravener and his heirs, but against creditors), may seem to favour the idea that heirs also would forfeit, the more favourable opinion has received the sanction of our supreme court. For the greater security, however, a clause is now usually inserted in tailzies, declaring, that the contravention of the heir in possession shall not affect his descendents, when such is the intention of the grantor.

14. When the heirs of the last person specially called in a tailzie come to succeed, the irritancies have no effect; and consequently, the fee, which was before tailzieed, becomes simple and unlimited in the person of such heirs. By the late act 20th Geo. II. for abolishing wardholdings, the king may purchase lands within Scotland, notwithstanding the strictest entail; and where the lands are in the hands of minors or satious persons, his majesty may purchase them from the curators or guardians. And heirs of entail may sell to their vassals the superiorities belonging to the entailed estate; but in all these cases, the price is to be settled in the same manner that the lands or superiorities sold were settled before the sale.

15. Rights, not only of land-estates, but of bonds, Rights 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 affected by their creditors during their lives: but, on the death of any one of them, the survivor has the fee of the whole, in so far as the share of the predeceased remains free, after payment of his debts. Where the right is taken to the two in conjunct fee, and to the heirs heirs of one of them, he to whose heirs the right is taken is the only heir; the right of the other resolves into a simple livery; 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 livery, the husband, as the persona dignior, is the only heir; the wife's right resolves into a livery, unless it be presumable, from special circumstances, that the fee was intended to be in the wife. Where a right of moveables is taken to husband and wife, the heirs of both succeed equally, according to the natural meaning of the words.

17. Heirs of provision are those who succeed to any subject, in virtue of a provision in the investiture, or other deed of settlement. This appellation is given most commonly to heirs of a marriage. These are more favourably regarded than heirs by simple definition, who have only the hope of succession; for heirs of a marriage, because their provisions are constituted by an onerous contract, cannot be disappointed of them by any gratuitous deed of the father. Nevertheless, as their right is only a right of succession, which is not designed to restrain the father from granting onerous or rational deeds, he continues to have the full power of selling the subject, or charging it with debts, unless a proper right of credit be given to the heir by the marriage contract. e.g., if the father should oblige himself to infest the heir in the lands, or make payment of the sum provided against a day certain, or when the child attains a certain age, &c.; for such rights, when perfected by investment, or secured by diligence, are effectual against all the posterior deeds of the father, even onerous.

18. Though all provisions to children, by a marriage contract conceived in the ordinary form, being merely rights of succession, are postponed to every onerous debt of the 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 encroached upon, the heirs of that marriage have recourse against the father, in case he should afterwards acquire a separate estate, which may enable him to fulfil both obligations.

19. In marriage-contracts, the conquest, or a certain part of it, is frequently provided to the issue; by which is understood whatever real addition shall be made to the father's estate during the marriage by purchase or donation. Conquest therefore must be free, i.e., what remains after payment of debts due by the father. As in other provisions, so in conquest; the father is still heir, and may therefore dispose of it for onerous or rational causes. Where heritable rights are provided to the heirs of a marriage, they fall to the eldest son, for he is the heir at law in heritage. Where a sum of money is so provided, the word heir is applied to the subject of the provision, and so marks out the executor, who is the heir in moveables. When an heritable right is provided to the bairns (or issue) of a marriage, it is divided equally among the children, if no division be made by the father; for such 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 familiae; 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 heir, 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 exceptions, 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, but heirs male or of tailzie, though their right be limited to special subjects, are liable, not merely to the extent of the subject entailed or provided, but in folium; because such rights are designed to carry an universal character, and so infer a universal representation of the grantor. The heir of line is primarily liable for the debts of his predecessor; for he is the most proper heir, and so must be discharged before any other can be pursued; next to him the heir of conquest, because he also succeeds to the universitas of the whole heritable rights which his predecessor had acquired by singular titles; then, the heir male, or of a marriage; for their propinquity of blood subjects them more directly than any other heir of tailzie, who may possibly be a stranger; and who for that reason is not liable to be discharged, except for such of the predecessor's debts or deeds as relate specially to the lands tailziezed; as to which he is liable even before the heir of line. Heirs portioners are liable pro rata for their predecessor's debts; but if any of them prove insolvent, the creditor may, after discharging her, insist for her share against the rest, who will be liable in so far as they are lucrative by the succession. Where an heir, liable subfidiare, pays the predecessor's debt, he has relief against the heir who is more directly liable, in respect of whom he is not co-heir, but creditor. 22. Before an heir can have an active title to his ancestor's rights, he must be entered by service and retour. He who is entitled to enter heir, is, before his actual entry, called apparent heir. The bare right of apparence carries certain privileges with it. An apparent heir may defend his ancestor's titles against any third party who brings them under challenge. Tenants may safely pay him their rents; and after they have once acknowledged him by payment, he may compel them to continue it; and the rents not uplifted by the apparent heir belong to his executors, upon his death.

23. As an heir is, by his entry, subjected universally to his ancestor's debts, apparent heirs have therefore a year (annus deliberandi) allowed to them from the ancestor's decease, to deliberate whether they will enter or not; till the expiry of which, though they may be charged by creditors to enter, they cannot be sued in any process founded upon such charge. Though declaratory actions, and others which contain no personal conclusion, may be pursued against the apparent heir, without a previous charge; action does not lie even upon these, within the year, if the heir cannot make the proper defences without incurring a passive title. But judicial sales, commenced against an ancestor, may by special act of federunt be continued upon a citation of the heir, without waiting the year of deliberating. This annus deliberandi is computed, in the case of a posthumous heir, from the birth of such heir. An apparent heir, who, by immixing with the estate of his ancestor, is as much subjected to his debts as if he had entered, can have no longer a right to deliberate whether he will enter or not.

24. All services proceed on briefs from the chancery, which are called briefs of inquest, and have been long known in Scotland. The judge, to whom the brief is directed, is required to try the matter by an inquest of 15 sworn men. The inquest, if they find the claim verified, must declare the claimant heir to the deceased, by a verdict or service, which the judge must attest, and return the brief, with the service proceeding on it, to the chancery; from which an extract is obtained called the retour of the service.

25. The service of heirs is either general or special. A general service vests the heir in the right of all heritable subjects, which either do not require seisin, or which have not been perfected by seisin in the person of the ancestor. A public right, therefore, according to the feudal law, though followed by seisin, having no legal effects till it be confirmed by the superior, must, as a personal right, be carried by a general service. A special service, followed by seisin, vests the heir in the right of the special subjects in which the ancestor died 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 heritage requiring seisin, to the clerk of the shire where he died; and it, after the same is subscribed by the sheriff or sheriff-depute, the clerk, and himself, and registered in the sheriff's books, the extract thereof shall be registered within forty days after expiry of the annus deliberandi in the general register appointed for that purpose, his subsequent entry will subject him no farther than to the value of such inventory. If the inventory be given up and registered within the time prescribed, the heir may serve on it, even after the year.

27. Creditors are not obliged to acquiesce in the value of the estate given up by the heir; but, if they be real creditors, may bring the estate to a public sale, in order to discover its true value; since an estate is always worth what can be got for it. An heir by inventory, as he is in effect a trustee for the creditors, must account for that value to which the estate may have been improved since the death of the ancestor, and he must communicate to all the creditors the case has got in transacting with any one of them.

28. Practice has introduced an anomalous sort of entry upon entry, without the interposition of an inquest, by the sole consent of the superior; who, if he be satisfied that the person applying to him is the next heir, grants him a precept (called of clare constat, from the first words of its recital), commanding his bailie to infest him in the subjects that belonged to his ancestor. The heir, by taking seisin on this precept, becomes passivus, liable for all the debts of his ancestor; and on the other hand, acquires an active title, as to the subjects contained in the precept in questions with the superior or his heirs; and they may, when followed by seisin, afford a title of prescription: But as no person can be declared an heir by private authority, they cannot bar the true heir from entering after 20 years, as a legal entry would have done; the true heir, in such case, having it still in his power to set aside that right, and obtain himself regularly served at any time within the years of prescription. Of the same nature is the entry by haps and staple, commonly used in burgage tenements of houses; by which the bailie, without calling an inquest, cognosces or declares a person heir, upon evidence brought before himself; and, at the same time infests him in the subject, by the symbol of the haps and staple of the door. Charges given by creditors to apparent heirs to enter, stand in the place of an actual entry, so as to support the creditor's diligence (clxxii. 2.).

29. A general service cannot include a special one, since it has no relation to any special subject, and excludes a series only that class of rights on which seisin has not been 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 famulitis.

30. An heir, by immixing with his ancestor's estate without entry, subjects himself to his debts, as if he titles 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 gaffo pro herede, or his behaving as none but an heir Gaffo pro herede. Behaviour as heir is inferred from the apparent heir's intromission, after the death of the ancestor, with any part of the lands or other heritable subjects belonging to the deceased, to which he himself might have completed an active title by entry.

31. This passive title is excluded, if the heir's intromission be by order of law; or if it be founded on singular singular titles, and not as heir to the deceased. But an apparent heir's purchasing any right to his ancestor's estate, otherwise than at public roup (auction), or his possessing it in virtue of rights settled in the person of any near relation of the ancestor, to whom he himself may succeed as heir, otherwise than upon purchase by public sale, is deemed behaviour as heir.

32. Behaviour as heir is also excluded, where the intromission is small, unless an intention to defraud the ancestor's creditors be presumable from the circumstances attending it. Neither is behaviour inferred against the apparent heir, from the payment of his ancestor's debt, which is a voluntary act, and profitable to the creditors; nor by his taking out of briefs to serve; for one may alter his purpose, while it is not completed; nor by his assuming the titles of honour belonging to his ancestor, or exercising an honorary office hereditary in the family; for these are rights annexed to the blood, which may be used without proper representation. But the exercising an heritable office of profit, which may pass by voluntary conveyance, and consequently is 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 the estate to which he himself might have succeeded as heir; and it is called preceptio hereditatis, because it is a taking of the succession by the heir before it opens to him by the death of his ancestor. If the right be onerous, there is no passive title; if the consideration paid for it does not amount to its full value, the creditors of the deceased may reduce it, in so far as it is gratuitous, but still it infers no passive title.

34. The heir incurring this passive title is no farther liable, than if he had at the time of his acceptance entered heir to the grantor, and so subjected himself to the debts that were then chargeable against him; but with the posterior debts he has nothing to do, not even with those contracted between the date of the right and the 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: Cessio 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 litigantested while the delinquent himself was alive; whereas the successor titulo lucrativo is by the acceptance of the disposition understood to have entered into a tacit contract with the grantor's creditors, by which he undertakes the burden of their debts; and all actions founded on contract are transmissible against heirs.

36. An apparent heir, who is cited by the ancestor's creditor in a process for payment, if he offers any pre-emptory defence against the debt, incurs a passive title; for he can have no interest to object against it, five titles, 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 abeyance, will intitle the heir to a suspension of all diligence against his person and estate, competent upon his ancestor's debts.

37. By the principles of the feudal law, an heir, when he is to complete his titles by special service, must necessarily pass over his immediate ancestor, e.g., his father, if he was not infest; and serve heir to that ancestor who was last vested and seised in the right, and in whose hereditas jacent the right must remain, till a title be connected thereto from him. As this bore hard upon creditors who might think themselves secure in contracting with a person whom they saw for some time in the possession of an estate, and from thence concluded that it was legally vested in him; it is therefore provided by act 1695, that every person, passing over his immediate ancestor who had been three years in possession, and serving heir to one more remote, shall be liable for the debts and deeds of the person interjected, to the value of the estate to which he is served. This being 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 liar, and possessed only civilly through the liferenter.

38. Our law, from its jealousy of the weakness of mankind while under sickness, and of the opportunity 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 ineflectual, 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 pouffie, by which is understood a state of health; and it gets the name, because persons in health have the legitima potestas, or lawful power, of disposing of their property at pleasure.

39. The two extremes being proved, of the grantor's What com- fickness immediately before signing, and of his death following it, though at the greatest distance of time, deed did, by our former law, found a presumption that the deed was granted on deathbed, which could not have been elided but by a positive proof of the grantor's convalescence; but now the allegation of deathbed is also excluded, by his having lived 60 days after signing the deed. The legal evidence of convalescence is the grantor's having been, after the date of the deed, at kirk or market unsupported; for a proof of either will secure the deed from challenge. The going to kirk or market must be performed when the people are met together in the church or churchyard for any public meeting, civil or ecclesiastical, or in the mar- ket-place at the time of public market. No other proof of convalescence is receivable, because at kirk and market there are always present unsuspected witnesses, which we can hardly be sure of in any other case.

40. The privilege of setting aside deeds *ex capit* leiti, 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 leito* 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 excommunication. If the heir should not use this privilege of reduction, his creditor may, by adjudication, transfer it to himself; or he may, without adjudication, reduce the deed, libelling upon his interest as creditor to the heir. But the grantor's creditors have no right to this privilege, in regard that the law of deathbed was introduced, not in behalf of the grantor himself, but of his heir.

41. The law of deathbed strikes against dispositions of every subject to which the heir would have succeeded, or from which he would have had any benefit, had it not been so disposed. Deathbed-deeds granted in consequence of a full or proper obligation in liege povicie, are not subject to reduction; but, where the antecedent obligation is merely natural, they are reducible. By stronger reason, the deceased cannot, by a deed merely voluntary, alter the nature of his estate on deathbed to the prejudice of his heir, so as from heritable to make it moveable; but if he should, in liege povicie, 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 (act 1661) has justly preferred the creditors of the deceased, as every man's estate ought to be liable, in the first place, for his own debt. But this preference is, by the statute, limited to the case where the creditors of the deceased have used diligence against their debtor's estate, within three years from his death; and therefore the heir's creditors may, after that period, affect it for their own payment. All dispositions by an heir, of the ancestor's estate, within a year after his death, are null, in so far as they are hurtful to the creditors of the ancestor. This takes place, though these creditors should have used no diligence, and even where the dispositions are granted after the year. It is thought they are ineffectual against the creditors of the deceased who have used diligence within the three years.

Sect. XXI. Of Succession in Moveables.

In the succession of moveable rights, it is an universal rule, that the next in degree to the deceased (or next of kin) succeeds to the whole; and if there are two or more equally near, all of them succeed by equal parts, without that prerogative, which takes place in heritage, of the eldest son over the younger, or of males over females. Neither does the right of representation (explained n° clxxx. 4.) obtain in the succession of moveables, except in the single case of a competition between the full blood and the half blood; for a niece by the full blood will be preferred before a brother by the half blood, though she is by one degree more remote from the deceased than her uncle. Where the estate of a person deceased consists partly of heritage, and partly of moveables, the heir in the heritage has no share of the moveables, if there are others as near in degree to the deceased as himself: But where the heir, in such case, finds it his interest to renounce his exclusive claim to the heritage, and betake himself to his right as one of the next of kin, he may collate or communicate the heritage with the others, who in their turn must collate the moveables with him; so that the whole is thrown into one mass, and divided equally among all of them. This doctrine holds, not only in the line of descendants, but of collaterals; for it was introduced, that the heir might in no case be worse than the other next of kin.

2. One may settle his moveable estate upon whom he successions pleases, excluding the legal successor, by a testament; in which is a written declaration of what a person wills to be done with his moveable estate after his death. No testamentary deed is effectual till the death of the testator; who may therefore revoke it at pleasure, or make a new one, by which the first loses its force, according to the rule, voluntas testatoris est ambulatoria usque ad mortem; and hence testaments are called last or latter wills. Testaments, in their strict 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 par. 6.) for his trouble in executing the testament; in payment of which, legacies, if any be left to him, must be imputed. The heir, if he be named executor, has right to the third as a stranger; but if one be named who has an interest in the legal succession, he has no allowance, unless such interest be less than a third. Nuncupative or verbal testaments are not, by the law of Scotland, effectual for supporting the nomination of an executor, let the subject of the succession be ever so small: But verbal legacies, not exceeding L. 100 Scots, are sustained; and even where they are granted for more, they are ineffectual only as to the excess.

3. A legacy is a donation by the deceased, to be paid by the executor to the legatee. It may be granted either in the testament or in a separate writing. Legacies are not due till the grantor's death; and consequently they can transmit no right to the executors of the legatee, in the event that the grantor survives him. A case occurred some years ago, where a testator left a legacy payable when the legatee arrived at a certain age. The legatee survived the testa- tor, but died before the legacy was payable. It was found, chiefly upon the authority of the Roman law, that the legacy vested in the legatee *a morte testatoris*, and upon his decease was due to the legatee's next of kin.

4. Legacies, where they are general, i.e., of a certain sum of money indefinitely, give the legatee no right in any one debt or subject; he can only inflict 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 rent; and, on the contrary, he has no claim, if the debt or subject bequeathed should perish, whatever the extent of the free executry may be.

5. Minors, after puberty, can test without their curators, wives without their husbands, and persons under what terdicts without their interdictors: but bastards cannot test, except in the cases afterwards set forth, No clxxii. 3. As a certain share of the goods, falling under the communion that is consequent on marriage, belongs upon the husband's decease, to his widow, *jure sollicitudinis*, and a certain share to the children, called the legitime, portion-natural, or *bairns part of gear*; one who has a wife or children, though he be the absolute administrator of all these goods during his life, and consequently may alien them by a deed *inter vivos*, in *lege pouffie*, even gratuitously, if no fraudulent intention to disappoint the wife or children shall appear, yet cannot impair their shares gratuitously on death-bed; nor can he dispose of his moveables to their prejudice by testament, though it should be made in *lege pouffie*; since testaments do not operate till the death of the testator, at which period the division of the goods in communion have their full effect in favour of the widow and children.

6. If a person deceased leaves a widow, but no child, his testament, or, in other words, the goods in communion, divide in two: one half goes to the widow; the other is the dead's part, i.e., the absolute property of the deceased, on which he can test, and which falls to his next of kin, if he dies intestate. Where he leaves children, one or more, but no widow, the children get one half as their legitime; the other half is the dead's part; which falls also to the children, if the father has not tested upon it. If he leaves both widow and children, the division is tripartite: the wife takes one third by herself; another falls, as legitime, to the children equally among them, or even to an only child, though he should succeed to the heritage; the remaining third is the dead's part. Where the wife predeceases without children, one half is retained by the husband, the other falls to her next of kin: Where she leaves children, the division ought also to be bipartite, by the common rules of society, since no legitime is truly due on a mother's death: yet it is in practice tripartite; two thirds remain with the surviving father, as if one third were due to him *proprio nomine*, and another as administrator of the legitime for his children; the remaining third, being the wife's share, goes to her children, whether of that or any former marriage; for they are all equally her next of kin.

7. Before a testament can be divided, the debts owing by the deceased are to be deducted; for all executry must be free. As the husband has the full power of burdening the goods in communion, his debts affect the whole, and so lessen the legitime and the share of the relict, as well as the dead's part. His funeral charges, and the mournings and alimony due to the widow, are considered as his proper debts; but the legacies, or other gratuitous rights granted by him on death-bed, affect only the dead's part. Bonds bearing interest, due by the deceased, cannot diminish the relict's share, because such bonds, when due to the deceased, do not increase it. The funeral charges of the wife predeceasing, fall wholly on her executors who have right to her share. Where the deceased leaves no family, neither husband, wife, nor child, the testament suffers no division, but all is the dead's part.

8. The whole issue of the husband, not only by that marriage which was dissolved by his death, but by any former marriage, has an equal interest in the legitime; otherwise the children of the first marriage would be cut out, as they could not claim the legitime during their father's life. But no legitime is due, (1.) Upon the death of a mother. (2.) Neither is it due to grandchildren, upon the death of a grandfather. Nor, (3.) To children 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 intitled thereto; and consequently the share of the renouncer divides among the rest; but he does not thereby lose his right to the dead's part, if he does not also renounce his share in the father's executry. Nay, his renunciation of the legitime, where he is the only younger child, has the effect to convert the whole subject thereof into dead's part, which will therefore fall to the renouncer himself as next of kin, if the heir be not willing to collate the heritage with him. Yet it has been found that the renunciation of the only younger child made the whole legitime accrue to the heir without collation.

10. For preserving an equality among all the children who continue intitled to the legitime, we have adopted the Roman doctrine of *collatio bonorum*; whereby the child, who has got a provision from his father, children, is obliged to collate it with the others, and imparte 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 *practicum* to the child, collation is excluded. A child is not bound to collate an heritable subject provided to him, because the legitime is not impaired by such provision. As this collation takes place only in questions among children who are intitled to the legitime, the relict is not bound to collate donations given her by her husband, in order to increase the legitime; and on the other part, the children are not obliged to collate their provisions, in order to increase her share.

11. As an heir in heritage must complete his titles by entry, so an executor is not vested in the right of the moveable estate of the deceased without confirmation. Confirmation is a sentence of the commissary or bishop's court, empowering an executor, one or more, upon making inventory of the moveables pertaining to the deceased, to recover, possess, and administer them, either in behalf of themselves, or of others interested therein. Testaments must be confirmed in the commissariat where the deceased had his principal dwelling house at his death. If he had no fixed residence, or died in a foreign country, the confirmation must be at Edinburgh, as the commune forum; but if he went abroad with an intention to return, the commissariat within which he resided, before he left Scotland, is the only proper court.

12. Confirmation proceeds upon an edict, which is affixed on the door of the parish-church where the deceased dwelt, and serves to intimate to all concerned the day of confirmation, which must be nine days at least after publishing the edict. In a competition for the office of executor, the commissary prefers, primo loco, the person named to it by the deceased himself, whose nomination he ratifies or confirms, without any previous decerniture: this is called the confirmation of a testamentary testamentary. In default of an executor named by the deceased, universal dispenses are by the present practice preferred; after them, the next of kin; then the relict; then creditors; and, lastly, special legatees. All these must be decerned executors, by a sentence called a decree dative; and if afterwards they incline to confirm, the commissary authorizes 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 closed by decree, during the life of his debtor, has no title to demand directly the office of executor qua creditor; but he may charge the next of kin, who stands off, to confirm, who must either renounce within twenty days after the charge, or be liable for the debt; and if the next of kin renounces, the pursuer may constitute his debt, and obtain a decree cognitio causae against the hereditas jacens of the moveables, upon which he may confirm as executor-creditor to the deceased. Where one is creditor, not to the deceased, but to his next of kin who stands off from confirming, he may affect the moveables of the deceased, by obtaining himself 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 omnia, vel male appetita, at the suit of any having interest; and if it appears that he has not omitted or undervalued any subject dole, the commissary will ordain the subjects omitted, or the difference between the estimations in the principal testament and the true values, to be added thereto; but if dole shall be presumed, the whole subject of the testament ad omnia vel male appetita, will be carried to him who confirms it, to the exclusion of the executor in the principal testament.

16. The legitime and relict's share, because they are legitime 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 ipso corpore of moveables, acquires the property thereof without confirmation, and transmits it to his executors.

17. The confirmation of any one subject by the next partial com of kin, as it proves his right of blood, has been confirmed, judged 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: how far executors therefore are not subjected to the debts due liable, by the deceased, beyond the value of the inventory; but, at the same time, they are liable in diligence for making the inventory effectual to all having interest. An executor-creditor who confirms more than his debt amounts to, is liable in diligence for what he confirms. Executors are not liable in interest, even upon such bonds recovered by them as carried interest to the deceased, because their office obliges them to retain the sums they have made effectual, in order to a distribution thereof among all having interest. This holds though they should again lend out the money upon interest, as they do it at their own risk.

19. There are certain debts of the deceased called privileged debts, which were always preferable to every other. Under that name are comprehended, medicines furnished to the deceased on deathbed, physicians fees, etc., during... during that period, funeral charges, and the rent of his house, and his servants wages for the year or term current at his death. These the executors are in safety to pay on demand. All the other creditors, who either obtain themselves confirmed, or who cite the executor already confirmed, within six months after their debtor's death, are preferred, pari passu, with those who have done more timely diligence; and therefore no executor can either retain for his own debt, or pay a testamentary debt, so as to exclude any creditor, who shall use diligence within the six months, from the benefit of the pari passu preference; neither can a decree for payment of debt be obtained, in that period, against an executor, because, till that term be elapsed, it cannot be known how many creditors may be intitled to the fund in his hands. If no diligence be used within the six months, the executor may retain for his own debt, and pay the residue primo venienti. Such creditors of the deceased as have used diligence within a year after their debtor's death, are preferable on the subject of his testament to the creditors of his next of kin.

20. The only passive title in moveables is vicious intromission; which may be defined, an unwarrantable intermeddling with the moveable estate of a person deceased, without the order of law. This is not confined, as the passive titles in heritage are, to the persons interested in the succession, but strikes against all intromitters whatever. Where an executor confirmed intromits with more than he has confirmed, he incurs a passive title; fraud being in the common case presumed from his not giving up in inventory the full subject intermeddled with. Vicious intromission is also presumed, where the repositories of a dying person are not sealed up, as soon as he becomes incapable of sense, by his nearest relations; or, if he dies in a house not his own, they must be sealed by the master of such house, and the keys delivered to the judge-ordinary, to be kept by him, for the benefit of all having interest.

21. The passive title of vicious intromission does not take place where there is any probable title or circumstance that takes off the presumption of fraud. In consequence of this rule, necessary intromission, or cyfollia 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 virility of his prior intromission: and where the intromitter is one who is interested in the succession, e.g. next of kin, his confirmation, at any time within a year from the death of the deceased, will exclude the passive title, notwithstanding a prior citation. As this passive title was intended only for the security of creditors, it cannot be sued upon by legatees; and since it arises ex delicto, it cannot be pleaded against the heir of the intromitter. As in delicts, any one of many delinquents may be subjected to the whole punishment, so any one of many intromitters may be sued in solidum for the pursuer's debt, without calling the rest; but the intromitter who pays, has an action of relief against the others for their share of it. If the intromitters are sued jointly, they are liable, not pro rata of their several intromissions, but pro 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.

IV. OF LAST HEIRS AND BASTARDS.

By our ancient practice, feudal grants taken to the Where vassal, and to a special order of heirs, without settling there is no the last termination upon heirs whatsoever, returned to heir, the superior, upon failure of the special heirs therein contained: but now that feus are become patrimonial rights, the superior is, by the general opinion, held to be fully divested by such grant, and the right descends to the vassal's heirs at law. And even where a vassal dies without leaving any heir who can prove the remotest propinquity to him, it is not the superior, as the old law stood, but the king, who succeeds as last heir, both in the heritable and moveable estate of the deceased, in consequence of the rule, Quod nullius est, cessit domino Regi.

2. If the lands, to which the king succeeds, be holden immediately of himself, the property is consolidated with the superiority, as if resignation had been made in the sovereign's lands. If they are holden of a subject, the king, who cannot be vassal to his own subject, names a donatory; who, to complete his title, must obtain a decree of declarator; and thereafter he is presented to the superior, by letters of presentation from the king under the quarter-seal, in which the superior is charged to enter the donatory. The whole estate of the deceased is, in this case, subjected to his debts, and to the widow's legal provisions. Neither the king nor his donatory is liable beyond the value of the succession. A person who has no heir to succeed to him, cannot alien his heritage in leto, 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 timus heres king therefore succeeds to him, failing his lawful issue, to the bastard as last heir. Though the bastard, as absolute proprietor of his own estate, can dispose of his heritage in liege poulie, and of his moveables by any deed inter vivos; yet he is disabled, ex defacto 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 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 definition, where he is specially called to the succession by an entail or testament.

5. Certain persons, though born in lawful marriage, are incapable of succession. Aliens are, from their allegiance to a foreign prince, incapable of succeeding in feudal rights, without naturalization. Children born in a foreign state, whose fathers were natural born subjects, and not attainted, are held to be natural born subjects. Persons educated in, or professing, the Popish religion, if they shall neglect, upon their attaining the age of 15, to renounce its doctrines by a signed declaration, cannot succeed in heritage; but must give place to the next Protestant heir, who will hold the estate irredeemably, if the Popish heir does not, within ten years after incurring the irritancy, sign the formula prescribed by the statute 1700, c. 3.

C H A P. III.

Of Actions.

Hitherto of Persons and Rights, the two first objects of law: Actions are its third object, whereby persons make their rights effectual.

clxxxiii. Sect. I. Nature, division, &c. of actions.

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, again, are either ordinary or rescissory. All actions are, in the sense of this division, ordinary, which are not rescissory. Rescissory actions are divided, (1.) Into actions of proper improbation. (2.)

Actions of reduction improbation. (3.) Actions of simple reduction. Proper improbations, which are brought for declaring writings false or forged, are noticed below, N° clxxxvi. 32. Reduction-improbation is an action, whereby a person who may be hurt or affected by a writing, insists for producing or exhibiting it in court, in order to have it set aside, or its effect ascertained, under the certification that the writing, if not produced, shall be declared false and forged. This certification is a fiction of law, introduced that the production of writings may be the more effectually forced, and therefore it operates only in favour of the pursuer. Because the summons in this action proceeds on alleged grounds of falshood, his majesty's advocate, who is the public prosecutor of crimes, must concur in it.

4. As the certification in this process draws after it so heavy consequences, two terms are assigned to the defenders for production. After the second term is elapsed, intimation must be made judicially to the defender, to satisfy the production within ten days; and till these are expired, no certification can be pronounced. Certification cannot pass against deeds recorded in the books of session, if the defender shall, before the second term, offer a confederation of the dates of their registration, unless falsehood be objected: in which case, the original must be brought from the record to the court. But an extract from the inferior court is no bar to certification; the principal writing must be laid before the court of session on a proper warrant.

5. In an action of simple reduction the certification is only temporary, declaring the writings called for reduction null, until they be produced; so that they recover their full force after production, even against the pursuer himself; for which reason, that process is now seldom used. Because its certification is not so severe as in reduction improbation, there is but one term assigned to the defender for producing the deeds called for.

6. The most usual grounds of reduction of writings are, the want of the requisite solemnities; that reduction the grantor was minor, or interdicted, or inhibited; or that he signed the deed on deathbed, 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, by the act 1621, declared to be null. One is deemed a prior creditor, whose ground of debt existed before the right granted by by the debtor; though the written voucher of the debt should bear a date posterior to it. Persons are accounted conjuncts, whose relation to the grantor is so near, as to bar them from judging in his cause. Confident persons are those who appear to be in the grantor'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 grantor 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 grantor: 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 grantor was insolvent. This rule holds also in rational takers contracted to husbands: But it must, in all cases, be qualified with this limitation, if the insolvency of the grantor was not publicly known; for if it was, fraud is presumed in the receiver of the right, by contracting with the bankrupt.

10. The receiver of the deed, if he be a conjunct or confident person, must instruct or support the onerous cause of his right, not merely by his own oath, but by some circumstances or miniciles. But where a right is granted to a stranger, the narrative of it expressing an onerous cause, is sufficient per se to secure it against reduction.

11. All voluntary payments or rights made by a bankrupt to one creditor, to disappoint the more timorous diligence of another, are reducible at the instance of that creditor who has used the prior diligence. A creditor, though his diligence be but begun by citation, may insist in a reduction of all posterior voluntary rights granted to his prejudice; but the creditor who neglects to complete his begun diligence within a reasonable time, is not intitled to reduce any right granted by the debtor, after the time that the diligence is considered as abandoned.

12. A prohibited alienation, when conveyed by the receiver to another who is not privy to the fraud, subflicts 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 696, c. 5, all alienations by a bankrupt, within 60 days before his bankruptcy, to one creditor in preference to another, are reducible, at the instance even of such co-creditors as had not used the least step of diligence. A bankrupt is there described by the following characters; diligence used against him by horning and caption; and insolvency, joined either with imprisonment, retiring to the sanctuary, abiding, or forcibly defending himself from diligence. It is sufficient that a caption is raised against the debtor, though it be not executed, provided he has retired to shun it. And by the late bankrupt statute 23d Geo. III. it is declared, that in all actions and questions arising upon the construction and effect of the act 1696; when a debtor is out of Scotland, or not liable to be imprisoned by reason of privilege or personal protection, a charge of horning executed against him, together with either an arrestment of any of his personal effects not loosed or discharged within fifteen days, or a poinding executed of any of his moveables, or a decree of adjudication of any part of his heritable estate, or sequestration by the act of a proper court, of all or any part of his estate or effects, heritable or moveable, for payment of debt, shall, when joined with insolvency, be held as sufficient proof of notour bankruptcy; and from and after the last step of such diligence, the said debtor, if insolvent, shall be held bankrupt. It is provided (by said act 1696), that all heritable bonds or rights on which seisin may follow, shall be reckoned, in a question with the grantor's other creditors upon this act, to be of the date of the seisin following thereon. But this act was found to relate only to securities for former debts, and not to nova debita.

14. Actions are divided into rei persecutoria, and Actions ei-penales. By the first, the pursuer inflicts barely to recover the subject that is his, or the debt due to him; and this includes the damage sustained; for one is as penal, 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 spolizie, ejection, and intrusion, are Spolizie penal. An action of spolizie 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 spolizie 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-borrowers is Contraventional penal. It proceeds on letters of law-borrowers, which contain a warrant to charge the party complained upon, that he may give security not to hurt the complainant 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 complainant 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 tisk, and the half to the complainant. 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 penal transgression; and as no heir ought to be accountable, for the delict of his ancestor, farther than the injured person has really suffered by it, penal actions die with the delinquent, and are not transmissible against heirs. Yet the action, if it has been commenced and litigated in the delinquent's lifetime, may be continued. nured against the heir, though the delinquent should die during the dependence. Some actions are rei pers-secutoria on the part of the pursuer, when he insists for simple restitution; which yet may be penal in respect of the defender; e.g., the action on the passive title of vicious intromission, by which the pursuer frequently recovers the debt due to him by the deceased, tho' it should exceed the value of the goods intermeddled with by the defenders.

18. The most celebrated division of actions in our law is into petitory, possessory, and declaratory. Petitory actions are those, where something is demanded from the defender, in consequence of a right of property, or of credit in the pursuer: Thus, actions for restitution of moveables, actions of pointing, of forthcoming, and indeed all personal actions upon contracts or quasi-contracts, are petitory. Possessory actions are those which are founded, either upon possession alone, as spoliation; 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 possidetis, et unde vi.

19. 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 session alone is competent to the action. Actions on brieves of perambulation, have the same tendency with molestations, viz. the settling of marches between contimerous lands.

20. The actions of mails and duties is sometimes petitory, and sometimes possessory. In either case, it is directed against the tenants and natural possessors of land-estates, for payment to the pursuer of the rents remaining due by them for past crops, and of the full rent for the future. It is competent, not only to a proprietor whose right is perfected by seisin, but to a simple disponee, for a disposition of lands includes a right to the mails and duties; and consequently to an adjudicator, for an adjudication is a judicial disposition. In the petitory action, the pursuer, since he founds upon right, not possession, must make the proprietor, from whom the tenants derive their right, party to the suit; and he must support his claim by titles of property or diligences, preferable to those in the person of his competitor. In the possessory, the pursuer who libels that he, his ancestors, or authors, have been seven years in possession, and that therefore he has the benefit of a possessory judgment, need produce no other title than a seisin, which is a title sufficient to make the possession of heritage lawful; and it is enough, if he calls the natural possessors, though he should neglect the proprietor. A possessory judgment founded on seven years possession, in consequence either of a seisin or a tack, has this effect, that though one should claim under a title preferable to that of the 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 claimed 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 reveration, &c. Under this class may be also comprehended rescissory actions, which, without any personal conclusion against the defender, tend simply to set aside the rights or writings libelled, in consequence of which a contrary right or immunity arises to the pursuer. Decrees upon actions that are properly declaratory confer no new right; they only declare what was the pursuer's right before, and so have a retrospect to the period at which that right first commenced. Declarators, because they have no personal conclusion against the defender, may be pursued against an apparent heir without a previous charge given him to enter to his ancestor; unless where special circumstances require a charge.

22. An action for proving the tenor, whereby a writing, which is destroyed or amissive, is endeavoured to be revived, is in effect declaratory. In obligations that are extinguishable barely by the debtor's retiring or cancelling them, the pursuer, before a proof of the tenor is admitted, must confesce on such a caus amissiva, or accident by which the writing was destroyed, as shows it was lost when in the creditor's possession; otherwise bonds that have been cancelled by the debtor on payment, might be reared up as still subsisting against him: But in writings which require contrary deeds to extinguish their effect, as assignments, dispositions, charters, &c. it is sufficient to libel that they were lost, even caufa fortuito.

23. Regularly, no deed can be revived by this action, Adminicules without some adminicle in writing, referring to that in writing which is libelled; for no written obligation ought to be raised up barely on the testimony of witnesses. If these adminicles afford sufficient conviction that the deed libelled did once exist, the tenor is admitted to be proved by witnesses, who must depose, either that they were present at signing the deed, or that they afterwards saw it duly subscribed. Where the relative writings contain all the substantial clauses of that which is lost, the tenor is sometimes sustained without witnesses. In a writing which is libelled to have contained uncommon clauses, all these must appear by the adminicles. Actions of proving the tenor are, on account of their importance, appropriated to the court of session; and, by the old form, the testimony of the witnesses could not be received but in presence of all the judges.

24. The action of double or multiple pointing may be also reckoned declaratory. It is competent to a pointing 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, so he may pay securely to him whose right shall be found preferable. This action is daily pursued by an arrêtee, in the case of several arrements 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 pointing 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... though he should not be cited as a defender, produce his titles, as if he were an original party to the suit, and will be admitted for his interest in the competition. By the foreaid bankrupt statute, however, it is competent, in the case of a forthcoming or multiple poinding raised on an arrestment used within thirty days prior, or four calendar months subsequent to a bankruptcy, for any other creditor producing his interest, and making his claim, in the process at any time before the expiration of the four months, to be ranked in the same manner as if he had used the form of arrestment.

25. Certain actions may be called accessory, because they are merely preparatory or subservient to other actions. Thus, exhibitions ad deliberandum, at the instance of an heir against the creditors or custodiers of his ancestor's writings, are intended only to pave the way for future processes. An action of transference is also of this sort, whereby an action, during the tendency of which the defender happens to die, is craved to be transferred against his representative, in the same condition in which it stood formerly. Upon the pursuer's death his heir may insist in the cause against the defender, upon producing either a retour or a confirmed testament, according as the subject is heritable or moveable. Transferences being but incidental to other actions, can be pronounced by that inferior judge alone before whom the principal cause depended; but where the representatives of the deceased live in another territory, it is the supreme court must transfer. Obligations may now be registered summarily after the creditor's death; which before was not admitted, without a separate process of registration, to which the 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 inflicted in for a year, in which case its effect is suspended; but even then it may, at any time within the years of prescription, be revived or wakened by a summons, in which the pursuer recites the last step of the process, and concludes that it may be again carried on as if it had not been discontinued. An action that stands upon any of the inner-house rolls cannot sleep; nor an action in which decree is pronounced, because it has got its full completion: Consequently the decree may be extracted after the year, without the necessity of a wakening.

27. An action of transumpt falls under the same class. It is competent to those who have a partial interest in writings that are not in their own custody, against the possessors thereof, for exhibiting them, that they may be transumed for their behoof. Tho' the ordinary title in this process be an obligation by the defender to grant 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 brieves issuing from the chancery, directed to the judicature or judge-ordinary, who tried the matter by a jury, upon whose verdict judgment was pronounced: And to this day we retain certain brieves, as of inquest, terce, idiotry, tutory, perambulation, and perhaps two or three others: But summonses were, immediately upon the institution of the college of justice, introduced in the place of brieves. A summons, when applied to actions pursued before the session, is a writ in the king's name, issuing from his signet upon the pursuer's complaint, 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 inducias legales. If he is within the kingdom, 21 and 6 days, for the first and second diets of appearance, must be allowed him for that purpose; and if out of it, 60 and 15. Defenders residing in Orkney or Zetland must be cited on 40 days. In certain summonses which are privileged, the inducias are shortened: Spuizies and ejectments proceed on 15 days; wakenings and transfers, being but incidental, on fix; (see the list of privileged summonses, in act of federunt June 29th 1672.) A summons must be executed, i.e. served against the defender, so as the last diet of appearance may be within a year after the date of the summons; and it must be called within a year after that diet, otherwise it falls for ever. Offence against the authority of the court, acts of malversation in office by any member of the college of justice, and acts of violence and oppression committed during the dependence of a suit by any of the parties, may be tried without a summons, by a summary complaint.

30. Though the Romans acknowledged a concurrence of actions in their proceedings, it is not known in the actions of law of Scotland. Therefore, where an action is in part penal, e.g. a removing, spuizie, &c. a pursuer who restricts his demand to, and obtains a decree merely for, restitution, cannot thereafter bring a new process for the violent profits. Yet the same fact may be the foundation both of a criminal and civil action, because these two are intended for different purposes; the one for satisfying the public justice, the other for indemnifying the private party: And though the defender should be absolved in the criminal trial, for want of evidence, the party injured may bring an action ad cautelam effictum, in which he is intitled to refer the libel to the defender's oath.

31. One libel or summons may contain different conclusions on the same ground of right, rescissory, declaratory, petitory, &c. if they be not repugnant to each other: Nay, though different sums be due to one, upon distinct grounds of debt, or even by different debtors, the creditor may insist against them all in the same summons.

32. Defences are pleas offered by a defender for eluding an action. They are either dilatory, which do not enter into the cause itself, and so can only procure an absolvitor from the lis pendens: Or peremptory, which entirely cut off the pursuer's right of action. The first, because they relate to the forms of proceeding, must be offered in limine judicii, and all of them at once. But peremptory defences may be proponed at any time before sentence. By a late act of federunt, however (1787), all defences, both dilatory and peremptory, so far as they are known, must be propounded at returning the summons, under a penalty; and the same enactment extends to the cases of suspensions and advocations. The writings to be founded upon by the parties also must be produced; the intention of the court, in framing the act of fedebrunt, being to accelerate as much as possible the decision of causes.

33. A cause, after the parties had litigated it before the judge, was said by the Romans to be litifconceitied. By litifconceitiation 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, litifconceitiation is not formed till an act is extracted, admitting the libel or defences to proof.

clxxiv.

Sect. II. Of Probation.

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 par. 3); and, on the contrary, a purifier who has brought a proof by witnesses, on an extracted act, is not allowed to recur to the oath of the defender. Single combat, as a sort of appeal to Providence, was, by our ancient law, admitted as evidence, in matters both civil and criminal. It was afterwards restricted to the case of such capital crimes where no other proof could be had; some traces of this blind method of trial remained even in the reign of James VI. who, by 1600, c. 12, might authorise duels on weighty occasions.

2. As obligations or deeds signed by the party himself, or his ancestors or authors, must be, of all evidence, the least liable to exception; therefore every debt or allegation may be proved by proper evidence in writing. The solemnities essential to probative deeds have been already explained, (no clxxiv. 3. et seq.) Books of account kept by merchants, tradesmen, and other dealers in business, though not subscribed, are probative against him who keeps them; and, in case of furnishings by a shop keeper, such books, if they are regularly kept by him, supported by the testimony of a single witness, afford a semiplena probatio in his favour, which becomes full evidence by his own oath in supplement. Notarial instruments and executions by messengers bear full evidence, that the solemnities therein set forth were used, not to be invalidated otherwise than by a proof of falsehood; but they do not prove any other extrinsic facts therein averred, against third parties.

3. Regularly, no person's right can be proved by his own oath, nor taken away by that of his adversary; because these are the bare averments of parties in their own favour. But, where the matter in issue is referred by one of the parties to the oath of the other, such oath, though made in favour of the deponent himself, is decisive of the point; because the reference is a virtual contract between the litigants, by which they are underlaid 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 snare that may be laid for perjury, he, to whose oath of verity a point is referred, may refuse to depose, till his adversary swear that he can bring no other evidence in proof of his allegation.

4. A defender, though he cannot be compelled to swear to facts in a libel properly criminal; yet may, in trespasses, where the conclusion is limited to a fine, or to damages. In general, an oath of party cannot either hurt or benefit third parties; being, as to them, res inter alios acta.

5. An oath upon reference is sometimes qualified by special limitations restricting it. The qualities which are admitted by the judge as part of the oath, are called intrinsic; those which the judge rejects or separates from the oath, extrinsic. Where the quality makes a part of the allegation which is relevantly referred to oath, it is intrinsic. Thus, because a merchant, suing for furnishings after the three years, must, in order to make a relevancy, offer to prove by the defender's oath, not only the delivery of the goods, but that the price is still due; therefore, though the defender should acknowledge upon oath his having received the goods, yet, if he adds, that he paid the price, this last part being a denial that the debt subsists, is intrinsic, since it is truly the point referred to oath. Where the quality does not import an extinction of the debt, but barely a counter-claim, or mutua petitia, against the purifier, 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 adjecting the quality of payment, where the payment ought by its nature to be vouched by written evidence.

6. Oaths of verity are sometimes referred by the judge to either party, ex officio; which, because they are not founded on any implied contract between the litigants, are not finally decisive, but may be traversed on proper evidence afterwards produced. These oaths are commonly put by the judge for supplying a lame or imperfect proof, and are therefore called oaths in supplement. (See par. 2.)

7. To prevent groundless allegations, oaths of calumny have been introduced, by which either party may calumnify 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 fedebrunt, Feb. 1, 1715, whereby any party, against whom a fact shall be alleged, is obliged, without making oath, to confess or deny it; and, in case of calumnious denial, is subjected to the expense that the other party has thereby incurred.

8. In all oaths, whether of verity or calumny, the citation carries, or at least implies, a certification, that if the party does not appear at the day assigned for deposing, he shall be held pro confesso; from a presumpti tion of his conscience, that the fact upon which he declines to swear makes against him; but no party can be held pro confesso, if lie 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 to depoest 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 lietum, is that which the judge refers to a purifier, 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 lietum, 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 n° clxxiii. 11.) This oath, as to the quantities, is not admitted, where there is a concurring testimony of witnesses brought in proof of it. When it is put as to the value of goods, it is only an oath of credulity; and therefore it has always been subject to the modification of the court.

10. The law of Scotland rejects the testimony of witnesses, (1.) In payment of any sum above L. 100 Scots, all which must be proved either scripto vel juramento, (2.) In all gratuitous promises, though for the smallest trifle, (3.) In all contracts, where writing is either essential to their constitution, (see n° cxxxv. 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 par., that no debt or right, once constituted by writing, can be taken away by witnesses.

11. On the other part, probation by witnesses is admitted to the extent of L. 100 Scots, in payments, noncuperative legacies, and verbal agreements which contain mutual obligations. And it is received to the highest extent, (1.) In all bargains which have known engagements naturally arising from them, concerning moveable goods, (2.) In acts 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 admits 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 witness. Lastly, all intrusion by a creditor with the rents of his debtor's estate payable in grain, may be proved by witness; and even intrusion 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 assist him, except a wife or child, who cannot be compelled to give testimony against the husband or parent, ob reverentiam persone, et materni 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 inhibile witnesses; being, in the judgment of law, incapable of the imprelusions of an oath. And in general witnesses otherwise exceptionable may, where there is a penury of witnesses arising from the nature or circumstances of the fact, be received 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 Purification 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 for reprobator, before the witness is examined; i.e., that he may be afterwards allowed to bring evidence of his enmity, or other inability. Reprobator is competent even after sentence, where protestation is duly entered; but in that case, the party instituting must confine 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 diligence parties are authorised to bring their proof, is either by way of act, or of incident diligence. In an act, the witness, lord ordinary who pronounces it is no longer judge in the process; but in an incident diligence, which is commonly granted upon special points, that do not exhaust the cause, the lord ordinary continues judge. If a witness does not appear at the day fixed by the warrant of citation, a second warrant is granted of the nature of a caption, containing a command to messengers to apprehend and bring him before the court. Where the party to whom a proof is granted, brings none within the term allowed by the warrant, an interlocutor is pronounced, circumducing the term, and precluding him from bringing evidence thereafter. Where evidence is brought, if it be upon an act, the lord ordinary on the acts, after the term for proving is elapsed, declares the proof concluded; and thereupon a state of the case is prepared by the ordinary on concluded causes, which must be judged by the whole lords; but if the proof be taken upon an incident diligence, the import of it may be determined by the lord ordinary in the cause.

16. Where facts do not admit a direct proof, presumptions are received as evidence which in many cases make as convincing a proof as the direct. Presumptions are consequences deduced from facts known or proved, which infer the certainty, or at least a strong probability, of another fact to be proved. This kind of probation is therefore called artificial, because it requires a reasoning to infer the truth of the point in question, from the facts that already appear in proof. Presumptions are either, 1. juris et de jure; 2. juris; or, 3. bo- minis 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 elide it in special cases. Thus, the testimony of a witness, who forwardly offers himself without being cited, is, from a presumption of his partiality, rejected, let his character be ever so fair; and thus also, a minor, because he is by law presumed incapable of conducting his own affairs, is upon that presumption disabled from acting without the consent of his curators, though he should be known to behave with the greatest prudence. Many such presumptions are fixed by statute.

17. Presumptiones juris are those which our lawbooks or decisions have established, without founding any particular consequence upon them, or statuting super presumpto. Most of this kind are not proper presumptions inferred from positive facts, but are founded merely on the want of a contrary proof; thus, the legal presumptions for freedom, for life, for innocence, &c., are in effect so many negative propositions, that servitude, death, and guilt, are not to be presumed, without evidence brought by him who makes the allegation. All of them, whether they be of this sort, or proper presumptions, as they are only conjectures formed from what commonly happens, may be elided, not only by direct evidence, but by other conjectures, affording a stronger degree of probability to the contrary. Presumptiones hominis or judicis, are those which arise daily from the circumstances of particular cases; the strength of which is to be weighed by the judge.

18. A fictio juris differs from a presumption. Things are presumed, which are likely to be true; but a fiction of law assumes for truth what is either certainly false, or at least is as probably false as true. Thus an heir is feigned or considered in law as the same person with his ancestor. Fictions of law must, in their effects, be always limited to the special purposes of equity for which they were introduced; see an example, No clxxxiii. 3.

Sect. III. Of Sentences and their Executions.

Property would be most uncertain, if debateable points might, after receiving a definitive judgement, be brought again in question, at the pleasure of either of the parties: every state has therefore fixed the character of final to certain sentences or decrees, which in the Roman law are called rei 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 obtained has thereafter recovered evidence sufficient to overturn it, of which he knew not before.

3. As parties might formerly reclaim against the sentences of the session, at any time before extracting cursive in the decree, no judgment was final till extract; but interlocutors now, a sentence of the inner-house, either not re-are final, claimed against within six federunt 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 session. And, by an order of the house of lords, March 24. 1725, no appeal is to be received by them from sentences of the session, after Time limits five years from extracting the sentence; unless the person intitled to such appeal be minor, clothed with a peals husband, non compos mentis, imprisoned, or out of the kingdom. Sentences pronounced by the lord ordinary have the same effect, if not reclaimed against, as if they were pronounced in presence; and all petitions against the interlocutor of an ordinary must be preferred within eight federunt days after signing such interlocutor.

4. Decrees, in absence of the defender, have not Decrees in the force of res judicatae 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 litigantcontestation; 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 Decrees the decree has already received full execution by payment, or where it decrees nothing to be paid or performed, but simply declares a right in favour of the pursuer. Suspension is that form of law by which the effect of a sentence condemnatory, that has not yet received execution, is stayed or postponed till the cause be again considered. The first step towards suspension is a bill preferred to the lord ordinary on the bills. This bill, when the desire of it is granted, is a warrant for issuing letters of suspension which pass the signet; but if the presenter of the bill shall not, within 14 days after passing it, expedite the letters, execution may by act of federunt 1677 proceed on the sentence. In practice, however, it is usual for the charger to put up a protestation in the minute-book for production of the suspension, which may be expedited at any time before this is done; and if the suspender shall allow the protestation to be extracted, the fit falls. Suspensions of decrees in foro cannot pass, but by the whole lords in time of session, and by three in vacation time; but other decrees may be suspended by any one of the judges. By the late act of federunt (1787), in order to remedy the abuse of presenting a multiplicity of bills of suspension of the decrees of inferior judges in small causes which have passed in absence, it is declared, that all bills of suspension of decrees by inferior judges in absence of the defenders in causes under 2 l. Sterling value, shall be refused and remitted to the inferior judge if competent; the suspender, however, before being heard in the inferior court, reimburs- Sing the charger of the expenses incurred by him previous to the remit.

6. As suspension has the effect of staying the execution of the creditor's legal diligence, it cannot, in the general case, pass without caution given by the suspender to pay the debt, in the event it shall be found due. Where the suspender cannot, from his low or suspected circumstances, procure unquestionable security, the lords admit juratory caution, i.e., such as the suspender swears is the best he can offer; but the reasons of suspension are, in that case, to be considered with particular accuracy at passing the bill. Decrees in favour of the clergy, of universities, hospitals, or parish-schoolmasters, for their stipends, rents, or salaries, cannot be suspended, but upon production of discharges, or on configuration of the sums charged for. A charger, who thinks himself secure without a cautioner, and wants dispatch, may, where a suspension of his diligence is sought, apply to the court to get the reasons of suspension summarily discussed on the bill.

7. Though he, in whose favour the decree suspended when competent is pronounced, be always called the charger, yet a decree may be suspended before a charge be given on it. Nay, suspension is competent even where there is no decree, for putting a stop to any illegal act whatsoever; thus, a building, or the exercise of a power which one assumes unwarrantably, is a proper subject of suspension. Letters of suspension are considered merely as a prohibitory diligence; so that the suspender, if he would turn provoker, must bring an action of reduction. If, upon discussing the letters of suspension, the reasons shall be sustained, a decree is pronounced, suspending the letters of diligence on which the charge was given simpliciter; which is called a decree of suspension, and takes off the effect of the decree suspended. If the reasons of suspension be repelled, the court find the letters of diligence orderly proceeded, i.e., regularly carried on; and they ordain them to be put to 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 registering the horning, may apply for letters of caption, which contain a command, not only to messengers, but to magistrates, to apprehend and imprison the debtor. All messengers and magistrates, who refuse their assistance in executing the caption, are liable subsidiary for the debt; and such subsidiary action is supported by the execution of the messenger employed by the creditor, expressing that they were charged to concur, and would not. Letters of caption contain an express warrant to the messenger, in case he cannot get access, to break open all doors and other lock-fast places.

9. Law secures peers, married women, and pupils, against personal execution by caption upon civil debts. Such commoners also as are elected to serve in parliament, are secured against personal execution by the privilege of parliament. No caption can be executed against a debtor within the precincts of the king's palace of Holyroodhouse; but this privilege of sanctuary afforded no security to criminals, as that did which was, by the canon law, conferred on churches and religious houses. Where the personal presence of a debtor, under caption, is necessary in any of our supreme courts, the judges are empowered to grant him a protection, for such time as may be sufficient for his coming and going, not exceeding a month. Protection from diligence is also granted by the court of session under the late bankrupt statute, where it is applied for, with concurrence of the trustee, or a certain number of the creditors as the case may require.

10. After a debtor is imprisoned, he ought not to be indulged the benefit of the air, not even under a close guard; for creditors have an interest, that their debtors be kept under close confinement, that, by the squalor carceris, they may be brought to pay their debt; and any magistrate or jailor, who shall suffer the prisoner to go abroad, without a proper attestation, upon oath, of the dangerous state of his health, is liable subsidiary for the debt. Magistrates are in like manner liable, if they shall suffer a prisoner to escape through the insufficiency of their prison; but, if he shall escape under night, by the use of instruments, or by open force, or by any other accident which cannot be imputed to the magistrates or jailor, they are not chargeable with the debt; provided they shall have, immediately after his escape, made all possible search for him. A case lately occurred where a messenger having apprehended a person for a debt, upon letters of caption, delivered him over to the provost of the burgh, and took a receipt for him. The provost allowed him to remain at the inn all night, and afterwards allowed him what is called open gaol, by which he had access to the courthouse, under the same roof with the prison, where he transacted business. As the person at whose instance he was apprehended upon the caption, considered that the magistrates had not kept the debtor in prison as commanded by the letters, brought an action against them for the debt, although the debtor had not so much as attempted to make his escape. It was contended by the magistrates, that they were not liable, having only followed the usual practice of the burgh; but the court of session, considering the magistrates as principal keepers of the prison, and as such having no discretionary power, were of opinion, that the debtor had never been imprisoned in the eye of law, and therefore found the magistrates liable; and their judgment was affirmed upon appeal. Regularly, no prisoner for debt upon letters of caption, though he should have made payment, could be released without letters of suspension, containing a charge to the jailor to set him at liberty; because the creditor's discharge could not take off the penalty incurred by the debtor for contempt of the king's authority; but to save unnecessary 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... 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 any 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 set free on a cesso bonorum, are obliged to wear a habit proper to dyvours or bankrupts. The lords are prohibited to dispense with this mark of ignominy, unless, in the summons and proofs of cesso, it be libelled, sustained, and proved, that the bankruptcy proceeds from misfortune. And bankrupts are condemned to submit to the habit, even where no suspicion of fraud lies against them, if they have been dealers in an illicit trade.

13. Where a prisoner for debt declares upon oath, before the magistrate of the jurisdiction, that he has not wherewith to maintain himself, the magistrate may set him at liberty, if the creditor, in consequence of whose diligence he was imprisoned, does not aliment him within ten days after intimation made for that purpose. But the magistrate may, in such case, detain him in prison, if the creditor refuses to bear the burden of the aliment rather than release him. The statute authorising this release, which is usually called the act of grace, is limited to the case of prisoners for civil debts.

14. Decrees are executed against the moveable estate of the debtor by arrestment or poinding; and against his heritable estate, by inhibition, or adjudication. If one be condemned, in a removing or other process, to quit the possession of lands, and refuses, notwithstanding a charge, letters of ejectment are granted of course, ordaining the sheriff to eject him, and to enter the obtainer of the decree into possession. Where one opposes by violence the execution of a decree, or of any lawful diligence, which the civil magistrate is not able by himself and his officers to make good, the execution is enforced manu militari.

15. A decree arbitral, which is a sentence proceeding on a submission to arbiters, has some affinity with a judicial sentence; though in most respects the two differ. A submission is a contract entered into by two or more parties who have disputable rights or claims, whereby they refer their differences to the final determination of an arbiter or arbiters, and oblige themselves to acquiesce in what shall be decided. Where the day within which the arbiters are to decide, is left blank in the submission, practice has limited the arbiters' power of deciding to a year. As this has proceeded from the ordinary words of style, empowering the arbiters to determine betwixt and the day of next to come; therefore, where a submission is indefinite, without specifying any time, like all other contracts or obligations, it holds for 40 years. Submissions, like mandates, expire by the death of any of the parties-submitters before sentence. As arbiters are not vetted with jurisdiction, they cannot compel witnesses to make oath before them, or havers of writings to exhibit them; but this defect is supplied by the court of session, who, at the suit of the arbiters, or of either of the parties, will grant warrant for citing witnesses, or for the exhibition of writings. For the same reason, the power of arbiters is barely to decide; the execution of the decree belongs to the judge. Where the submitters consent to the registration of the decree-arbitral, performance may be enforced by summary diligence.

16. The power of arbiters is wholly derived from the consent of parties. Hence where their powers are limited to a certain day, they cannot pronounce sentence after that day. Nor can they subject parties to a penalty higher than that which they have agreed to in the submission. And where a submission is limited to special claims, sentence pronounced on subjects not specified in the submission is null, as being ultra vires compromissi.

17. But, on the other hand, 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.

Sect. IV. Of Crimes.

The word crime, in its most general sense, includes crimes, 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, public, 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 purified 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 vindicatum publicam, though the party injured should refuse to concur. Smaller offences, as petty riots, injuries, &c., which do not demand the public vengeance, pass generally by the appellation of delicts, and are punished either by fine or imprisonment.

2. The essence of a crime is, that there be an intention in the actor to commit; for an action in which the will of the agent has no part, is not a proper object either of rewards or punishments; hence arises the rule crimen dolo contrahitur. Simple negligence does not therefore constitute a proper crime. Yet where it is extremely gross, it may be punished arbitrarily. Far less can we reckon in the number of crimes, those committed mitted by an idiot or furious person; but lesser degrees of satiety, which only darken reason, will not afford a total defense, though they may save from the pena ordinaria. Actions committed in drunkenness are not to be considered as involuntary, seeing the drunkenness itself, which was the first cause of the action, is both voluntary and criminal.

3. On the same principle, such as are in a state of infancy, or in the confines of it, are incapable of a criminal action, dole not being incident to that age; but the precise age at which a person becomes capable of dole, being fixed neither by nature nor by statute, is by our practice to be gathered by the judge, as he best can, from the understanding and manners of the person accused. Where the guilt of a crime arises chiefly from stature, 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 being accessory to a crime committed by another; which last is by civilians styled ope et consilio, and, in our law phrase, art and part. A person may be guilty, art and part, either by giving advice or counsel to commit the crime; or, 2. By giving warrant or mandate to commit it; or, 3. By actually afflicting 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 cleat 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 Ann. c. 21, both with regard to the facts constituting that crime, to the forms of trial, the corruption of blood, and all the penalties and forfeitures consequent on it.

10. It is high treason, by the law of England, to imagine the death of the King, Queen-consort, or of the heir apparent of the crown; to levy war against the King, or adhere to his enemies; to counterfeit the king's coin, or his great or privy seal; to kill the chancellor, treasurer, or any of the 12 judges of England, while they are doing their offices; which last article is by the forenamed act 7 Ann. applied to Scotland, in the case of slaying any judge of the session or of judicary sitting in judgment. Those who wash, clip, or lighten, the proper money of the realm; who advisedly affirm by writing or printing, that the Pretender has any right to the crown, that the king and parliament cannot limit the succession to it, or who hold correspondence with the Pretender, or any person employed by him, are also guilty of treason.

11. The forms of proceeding in the trial of treason, pains of whether against peers or commoners, are set forth in a treason bill, published by order of the house of lords in 1709, subjoined to a collection of statutes concerning treason. By the conviction upon this trial, the whole estate of the traitor forfeits to the crown. His blood is also corrupted, so that, on the death of an ancestor, he cannot inherit; and the estate which he cannot take, falls to the immediate superior as escheat, ab defecutione hereditatis, 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 of treason, one's bare knowledge of the crime, and not discovering it to a magistrate or other person entitled by his office office to take examinations; though he should not in the least degree assent to it. The foresaid act 7 Ann. makes the English law of misprision ours. Its punishment is by the law of England, perpetual imprisonment, together with the forfeiture of the offender's moveables, and of the profits of his heritable estate, during his life; that is, in the style of our law, his single and life-rent escheat.

13. The crime of sedition consists in the raising of commotions or disturbances in the state. It is either verbal or real. Verbal sedition, or lese-majesty, is inferred from the uttering of words tending to create discord between the king and his people. It is punished either by imprisonment, fine, or banishment, at the discretion of the judge. Real sedition is generally committed by convoking together any considerable number of people, without lawful authority, under the pretence of redressing some public grievance, to the disturbing of the public peace. Those who are convicted of this crime are punished by the confiscation of their goods; and their lives are at the king's will. If any persons, to the number of 12, shall assemble, and being required by a magistrate or constable to disperse, shall nevertheless continue together for an hour after such command, the persons disobeying shall suffer death and confiscation of moveables.

14. Judges, who, wilfully or through corruption, use their authority as a cover to injustice or oppression, are punished with the loss of honour, fame, and dignity. Under this head may be classed theftbote (from bot, "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 maim any officer of the revenue, in the execution of his office, are punishable with death and the confiscation of moveables.

16. Breach of arrestment (see No lxxviii. 5) is a arrestment 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 foretelling of markets; that is, the buying of goods intended for a public market, before they are carried there; which for the third criminal act infers the escheat of moveables; as also slaying salmon in forbidden time, destroying plough grass in time of tillage, slaying or houghing horses or cows in time of harvest, and destroying or spoiling growing timber; as to the punishment of which, see statutes 1503, c. 72. —1587, c. 82. and 1609, 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 wilful taking away of a person's life, without a necessary cause. Our law makes no distinction betwixt premeditated and sudden homicide: both are punished capitally. Casual homicide, where the actor is in some degree blameworthy; 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 demembration, 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 asylum 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 of 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 16 years; and an arbitrary punishment, if he be under it. A presumptive or statutory murder is constituted by 1690, c. 21, by which any woman who shall conceal her pregnancy, during its whole course, and shall not call for, or make use of, help in the birth, is to be reputed the murderer, if the child be dead, or amissing. This act was intended to discourage the unnatural practice of women making away with their children begotten in fornication, to avoid church-creatures.

20. Duelling, is the crime of fighting in single combat, on previous challenges given and received. Fighting in a duel, without licence from the king, is punishable by death; and whatever person, principal or second, shall give a challenge to fight a duel, or shall accept a challenge, or otherwise engage therein, is punished by banishment and escheat of moveables, though no actual fighting should ensue.

21. Hainsucken (from haim "home," and sacken "to hainsucken or peck") is the assaulting or beating of a person in his own house. The punishment of this crime is nowhere defined, except in the books of the Majesty, which make it the same as that of a rape; and it is, like rape, capital by our practice. The assault must be made in the proper house of the person assaulted, where 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 complete execution of the decree, or shall be accessory to such invasion, shall lose his cause. The sentence pronounced on this trial, against him who has committed the battery, is not subject to reduction, either on the head of minority, or on any other ground whatever; and if the person prosecuted for this crime shall be denounced for not appearing, his 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 £600 down to £400 Scots, according to the rank of the person detained; and the judge, or other person guilty, is over and above subjected to pay to the person detained a certain sum per diem, proportioned to his rank, and is declared incapable of public trust. All these penalties may be inflicted for by a summary action before the session, and are subject to no modification.

Adultery. 24. Adultery, is the crime by which the marriage-bed is polluted. This crime could neither by the Roman nor Jewish law be committed, but where the guilty woman was the wife of another; by ours, it is adultery, if either the man or woman be married. We distinguish between simple adultery, and that which is notorious or manifest. Open and manifest adulterers, who continue incorrigible, notwithstanding the censures of the church, are punished capitally. This crime is distinguished by one or other of the following characters: where there is issue procreated between the adulterers; or where they keep bed and company together notoriously; or where they give scandal to the church, and are, upon their obstinate refusing to listen to its admonitions, excommunicated. The punishment of simple adultery, not being defined by statute, is left to the discretion of the judge; but custom has made the falling of the single escheat one of its penalties.

Bigamy. 25. Bigamy, is a person's entering into the engagements of a second marriage, in violation of a former marriage-vow still subsisting. Bigamy, on the part of the man, has been tolerated in many states, before the establishment of Christianity, even by the Jews themselves; but it is prohibited by the precepts of the gospel, and it is punished by our law, whether on the part of the man or of the woman, with the pains of perjury.

Enceint. 26. Enceint is committed by persons who stand within the degrees of kindred forbidden in Lev. xviii. and is punished capitally. The same degrees are prohibited in affinity, as in consanguinity, Lev. xviii. 13, et seq. As this crime is repugnant to nature, all children, whether lawful or natural, stand on an equal footing: civilis ratio civitatis jura corrumpere potest, non vero naturalia. It is difficult indeed to bring a legal proof of a relation merely natural, on the side of the father; but the mother may be certainly known without marriage.

27. There is no explicit statute making rape, or the ravishing of women, capital; but it is plainly supposed in act 1612, c. 4, by which the ravisher is exempted from the pains of death, only in the case of the woman's subsequent consent, or her declaration that she went off with him of her own free-will; and even then, he is to suffer an arbitrary punishment, either by imprisonment, confiscation of goods, or a pecuniary fine.

28. Theft is defined, A fraudulent intermeddling with the property of another, with a view of making gain. Our ancient law proportioned the punishment of the theft to the value of the goods stolen; heightening it gradually, from a slight corporal punishment to a capital, if the value amounted to thirty-two pennies Scots, which in the reign of David I. was the price of two sheep. In several latter acts, it is taken for granted, that this crime is capital. But where the thing stolen is of small value, we consider it not as theft but as pickery, which is punished either corporally or by banishment. The breaking of orchards, and the stealing of green wood, is punished by a fine, which rises as the crime is repeated.

29. Theft may be aggravated into a capital crime, though the value of the thing stolen be trifling; as theft twice repeated, or committed in the night, or by landed men; or of things set apart for sacred uses. The receivers and concealers of stolen goods, knowing Refect of them to be such, suffer as thieves. Those who barely harbour the person of the criminal within 48 hours either before or after committing the crime, are punished as partakers of the theft. Such as sell goods belonging to thieves or lawless persons who dare not themselves come to market, are punished with banishment and the escheat of moveables.

30. Theft attended with violence is called robbery; Robbery and in our old statutes, rief or stouthrief; under which &c. clasps 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 associating together, that it was thought necessary to vest all our freeholders with a power of holding courts upon forners and rievers, and condemning them to death. Nay, all were capitally punished, who, to secure their lands from depredation, payed to the rievers a yearly contribution, which got the name of black-mail. An act also passed, commanding to banishment a band of forners, who were originally from Egypt, called gypsies, and adjudging to death all that should be reputed Egyptian, 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 lives and goods of persons convicted of using false weights or measures were, by our old law, in the king's mercy; mercy; and their heirs could not inherit but upon a remission. The latest statute against this crime, punishes it by confiscation of moveables. That particular species of falsehood, which consists in the falsifying of writings, passes by the name of forgery. Our practice has now of a long time, agreeably to the Roman law, made this crime capital; unless the forgery be of executions, or other writings of smaller moment; in which case, it is punished arbitrarily.

32. The writing must not only be fabricated, but put to use or founded on, in order to infer this crime. And though it be strictly criminal, yet the trial of it is proper to the court of session; but where improbation is moved against a deed by way of exception, the inferior judge, before whom the action lies, is competent to it ad civilum 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 calumnious.

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.

Perjury.

34. Perjury, which is the judicial affirmation of a falsehood on oath, really constitutes the crimen falsi; for he who is guilty of it does, in the most solemn manner, substitute falsehood in the place of truth. To constitute this crime, the violation of truth must be deliberately intended by the swearer; and therefore reasonable allowances ought to be given to forgetfulness or misapprehension, according to his age, health, and other circumstances. The breach of a promissory oath, does not infer this crime; for he who promises on oath, may sincerely intend performance when he swears, and so cannot be said to call on God to attest a falsehood. Though an oath, however false, if made upon reference in a civil question, concludes the cause, the person perjured is liable to a criminal trial; for the effect of the reference can go no further than the private right of the parties.

35. Notwithstanding the mischievous consequences of perjury to society, it is not punished capitally, but by confiscation of moveables, imprisonment for a year, and infamy. The court of session is competent to perjury incidenter, when, in any examination upon oath, taken in a cause depending before them, a person appears to have sworn falsely; but in the common case, that trial is proper to the justiciary. Subornation of perjury consists in tampering with persons who are to swear in judgment, by directing them how they are to depose; and it is punished with the pains of perjury.

Stellionate.

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 disposes. 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 cognizance 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 a higher rate of interest than is authorised by law. It is divided into usura manifesta, or direct; and velata, or covered. One may be guilty of the first kind, either where he covenants with the debtor for more than the lawful interest on the loan-money; or where one receives the interest of a sum before it is due, since thereby he takes a consideration for the use of money before the debtor has really got the use of it. Where a debt is clogged with an uncertain condition, by which the creditor runs the hazard of losing his sum, he may covenant for an higher interest than the legal, without the crime of usury; for there, the interest is not given merely in consideration of the use of the money, but of the danger undertaken by the creditor.

38. Covered usury, is that which is committed under the mask not of a loan but of some other contract; e.g., a sale or an improper wadlet. And in general, all obligations entered into with an intention of getting more than the legal interest for the use of money, however they may be disguised, are usurious. As a farther guard against this crime, the taking more than the legal interest for the forbearance of payment of money, merchandise, or other commodities, by way of loan, exchange, or other contrivance whatever, or the taking a bribe for the loan of money, or for delaying its payment when lent, is declared usury. Where usury is proved, the usurious obligation is not only declared void, but the creditor, if he has received any unlawful profits, forfeits the treble value of the sums or goods lent. Usury, when it is to be pursued criminally, must be tried by the justiciary; but where the libel concludes only for voiding the debt, or restitution, the session is the proper court.

39. Injury, in its proper acceptation, is the reproaching or affronting our neighbour. Injuries are either verbal or real. A verbal injury, when directed against a private person, consists in the uttering contumelious words, which tend to expose our neighbour's character by making him little or ridiculous. It does not seem that the twitting one with natural defects, without any sarcastical reflections, though it be inhuman, falls under this description, as these imply no real reproach in the just opinion of mankind. Where the injurious expressions have a tendency to blacken one's moral character, or fix some particular guilt upon him, and are deliberately repeated in different companies, or handed about in whispers to 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, miftaries, who, as the judges Christianitatis, are the only judges of scandal; yet, for some time past, bare verbal injuries have been tried by other criminal judges, and even by the fession. 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; affuming a coat of arms, or any other mark of distinction proper to another, &c. The composing and publishing defamatory libels may be reckoned of this kind. Real injuries are tried by the judge-ordinary, and punished either by fine or imprisonment, according to the demerit of the offenders.

40. After having shortly explained the several crimes punishable by our law, this treatise may be concluded with a few observations on criminal jurisdiction, the forms of trial, and the methods by which crimes may be extinguished. Criminal jurisdiction is founded, 1. Ratione domicilii, if the defender dwells within the territory of the judge. Vagabonds, who have no certain domicile, may be tried wherever they are apprehended. 2. Ratione delicti, if the crime was committed within the territory. Treason is triable, by the English law, in any county that the king should appoint; and, by a temporary act now expired, treason committed in certain Scots counties, was made triable by the court of judicature, wherever it should fit.

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 furere, 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 12,000 merks Scots for a nobleman, 6,000 for a landed gentleman, 2,000 for every other gentleman or burges, and 600 for any other inferior person. That persons who, either from the nature of the crime with which they are charged, or from their low circumstances, cannot procure bail, may not lie for ever in prison untried, it is lawful for every such prisoner to apply to the criminal judge, that his trial may be brought on,

The judge must, within 24 hours after such application, issue letters directed to messengers, for intimating to the prosecutor to fix a diet for the prisoner's trial, within 60 days after the intimation, under the pain of wrongful imprisonment: And if the prosecutor does not insist within that time, or if the trial is not finished in forty days more when carried on before the Judicature, 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 Precognition crimes, it is usual for a justice of the peace, sheriff, or other judge, to take a precognition of the facts, i.e., to examine those who were present at the criminal act, upon the special circumstances attending it, in order to know whether there is ground for a trial, and to serve as a direction to the prosecutor, how to set forth the facts in the libel; but the persons examined may insist to have their declarations cancelled before they give testimony at the trial. Justices of the peace, sheriffs, and magistrates of boroughs, are also authorized to receive informations, concerning crimes to be tried in the circuit-courts; which informations are to be transmitted to the justice-clerk 40 days before the fitting 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 fisc 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 fine.

44. The forms of trial upon criminal accusations differ much from those observed in civil actions, if we except the case of such crimes as the court of session is competent to, and of lesser offences tried before inferior courts. The trial of crimes proceeds either upon indictment, which is sometimes used when the person to be tried is in prison; or by criminal letters issuing from the signet of the judicature. In either case, the defender must be served with a full copy of the indictment or letters, and with a list of the witnesses to be brought against him, and of the persons who are to pass on the inquest, and 15 free days must intervene between his being so served and the day of appearance. When the trial proceeds upon criminal letters, the private prosecutor must give security, at raising the letters, that he will report them duly executed to the judicature, 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 these facts were done. The time of committing the crime may be libelled in more general terms, with an alternative as to the month, or day of the month; but as it is not practicable, in most cases, to libel upon the precise circumstances of accession that may appear in proof, libels against accessories are sufficient, if they mention, in general, that the persons prosecuted are guilty art and part.

46. The defender in a criminal trial may raise letters of exculpation, for citing witnesses in proof of his defences against the libel, or of his objections against any of the jury or witnesses; which must be executed to the same day of appearance with that of the indictment or criminal letters.

47. The diets of appearance, in the court of judicary, 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, infanta 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 abconding of a necessary witness, the court will, upon a motion made by him, desert the diet pro loco et tempore; after which new letters become also necessary. A defender, who does not appear on the very day to which he is cited, is declared fugitive; in consequence of which, his single 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 libelled be found irrelevant, the pannel is dismissed from the bar; if relevant, the court remits the proof thereof to be determined by the jury; which must consist of 15 men picked out by the court from a greater number not exceeding 45, who have been all summoned, and given in list to the defender at serving him with a copy of the libel.

49. Crimes cannot, like debts, be referred to the defender's oath; for no person is compellable to swear against himself, where his life, limb, liberty, or estate is concerned, nor even in crimes which infer infamy; because one's good name is, in right estimation, as valuable as his life. There is one exception however to this rule in trying the crime of usury, which may be proved by the usurer's own oath, notwithstanding the rule, Nemo tenetur jurare in suam turpitudinem. Crimes therefore are in the general case 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 judgement, can be admitted as evidence.

50. All objections relevant against a witness in civil cases are also relevant in criminal. No witness is admitted, who may gain or lose by the event of the trial. Socii criminis, or associates in the same crime, are not admitted against one another, except either in crimes against the state, as treason; in occult crimes, where other witnesses cannot be had, as forgery; or in thefts or depredations committed in the Highlands. The testimony of the private party injured may be received against the pannel, where the king's advocate is the only prosecutor, if from the nature of the crime, there must needs be a penury of witnesses, as in rape, robbery, &c.

51. After all the witnesses have been examined in court, the jury are shut up in a room by themselves, where they must continue, excluded from all correspondence, till their verdict or judgment be subscribed by the foreman (or chancellor) and clerk; and according to this verdict the court pronounces sentence, either absolving or condemning. It is not necessary, by the law of Scotland, that a jury should be unanimous in finding a person guilty; the narrowest majority is as sufficient against the pannel, as for him. Juries cannot be punished on account of an erroneous verdict, either for or against the pannel.

52. Though the proper business of a jury be to inquire into the truth of the facts found relevant by a jury, court, for which reason they are sometimes called the inquest; yet, in many cases, they judge also in matters of law or relevancy. Thus, though an objection against a witness should be repelled by the court, the jury are under no necessity to give more credit to his testimony than they think just: And in all trials of art and part, where special facts are not libelled, the jury, if they return a general verdict, are indeed judges not only of the truth, but of the relevancy of the facts that are sworn to by the witnesses. A general verdict, is that which finds in general terms, that the pannel is guilty or not guilty, or that the libel or defences are proved or not proved. In a special verdict, the jury finds certain facts proved, the import of which is to be afterwards considered by the court.

53. Criminal judges must now suspend for some time the execution of such sentences as affect life or limb, that so condemned criminals, whose cases deserve favour, may have access to apply to the king for mercy. No sentence of any court of judicature, south of the river Forth, importing either death or dismemberment, can be executed in less than 30 days; and, if north of it, in less than 40 days, after the date of the sentence. But corporal punishments, less than death or dismembering, e.g. whipping, pillory, &c. may be inflicted eight days after sentence on this side Forth, and twelve days after sentence beyond it.

54. Crimes are extinguished, 1. By the death of the criminal: both because a dead person can make of 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 auatores. 2. Crimes may be extinguished by a remission from the sovereign. But a remission, tho' it secures the delinquent from the public resentment, the exercise of which belongs to the crown, cannot cut off the party injured from his claim of damages, over which the crown has no prerogative. Whoever therefore 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 modum pane, yet do not against the payment of any pecuniary fine that 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 him, or by his being reconciled to the offender, after receiving the injury. Hence arises the rule, Diffimulatio tollit injuriam. 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 advocates, or procurator-fiscal, from instituting ad vindictam publicam.

56. Crimes are also extinguished by prescription, which operates by the mere lapse of time, without any act either of the sovereign or of the private sufferer. Crimes prescribe in 20 years; but in particular crimes, the prescription is limited by statute to a shorter time. No person can be prosecuted upon the act against 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 prosecutor, the prosecutor must sue within one year, and the crown within two years after the year ended. Certain crimes are, without the aid of any statute, extinguished by a shorter prescription than twenty years. By our old law, in the cases of rape, robbery, and hamefucken, the party injured was not heard after a silence of twenty-four hours; from a presumption, that persons could not be so grossly injured, without immediately complaining: And it is probable, that a prosecution for these crimes, if delayed for any considerable time, would be cast even at this day, or at least the punishment restricted. Lesser injuries suffer also a short prescription; law presuming forgiveness, from the nature of the offence, and the silence of the party. The particular space of time sufficient to establish this presumption must be determined by the judge, according to circumstances.

LAW

Law-Language. In England all law-proceedings were formerly written, as indeed all public proceedings were, in Norman or law French, and even the arguments of the counsel and decisions of the court were in the same barbarous dialect. An evident and shameful badge, it must be owned, of tyranny and foreign servitude; being introduced under the auspices of William the Norman, and his sons: whereby the observation of the Roman satyrift was once more verified, that Gallia caudidos docuit facunda Britannos. This continued till the reign of Edward III.; who, having employed his arms successfully in subduing the crown of France, thought it unbecoming the dignity of the victors to use any longer the language of the vanquished country. By a statute, therefore, passed in the 36th year of his reign, it was enacted, that for the future all pleas should be pleaded, shown, defended, answered, debated, and judged, in the English tongue; but be entered and enrolled in Latin: In like manner as Don Alonso X. king of Castile (the great-grandfather of our Edward III.) obliged his subjects to use the Castilian tongue in all legal proceedings: and as, in 1286, the German language was established in the courts of the empire. And perhaps, if our legislature had then directed that the writs themselves, which are mandates from the king to his subjects to perform certain acts or to appear at certain places, should have been framed in the English language, according to the rule of our ancient law, it had not been very improper. But the record or enrolment of those writs and the proceedings thereon, which was calculated for the benefit of posterity, was more serviceable (because more durable) in a dead and immutable language than in any flux or living one. The practitioners, however, being used to the Norman language, and therefore imagining they could express their thoughts more aptly and more concisely in that than in any other, still continued to take their notes in law French; and of course, when those notes came to be published, under the denomination of reports, they were printed in that barbarous dialect; which, joined to the additional terrors of a Gothic black letter, has occasioned many a student to throw away his Plowden and Littleton, without venturing to attack a page of them. And yet in reality, upon a nearer acquaintance, they would have found nothing very formidable in the language; which differs in its grammar and orthography as much from the modern French, as the diction of Chaucer and Gower does from that of Addison and Pope. Besides, as the English and Norman languages were concurrently used by our ancestors for several centuries together, the two idioms have naturally assimilated, and mutually borrowed from each other: for which reason the grammatical construction of each is so very much the same, that I apprehend an Englishman (with a week's preparation) would understand the laws of Normandy, collected in their grand coulhumier, as well, if not better, than a Frenchman bred within the walls of Paris.

The Latin, which succeeded the French for the entry and enrolment of pleas, and which continued in use for four centuries, answers so nearly to the English (oftentimes word for word) that it is not at all surprising it should generally be imagined to be totally fabricated at home, with little more art or trouble than by adding Roman terminations to English words. Whereas in reality it is a very universal dialect, spread throughout all Europe at the irruption of the northern nations; and particularly accommodated and moulded to answer all the purposes of the lawyers with a peculiar exactness and precision. This is principally owing to the simplicity, or (if the reader pleases) the poverty and baldness of its texture, calculated to express the ideas of mankind just as they arise in the human mind, without any rhetorical flourishes, or perplexed ornaments of style: for it may be observed, that those laws and ordinances, of public as well as private communities, are generally the most easily understood, where strength and perspicuity, not harmony or elegance of expression, have been principally consulted in compiling them. These northern nations, or rather their legislators, though they resolved to make use of the Latin tongue in promulgating their laws, as being more durable and more generally known to their conquered subjects than their own Teutonic dialects, yet (either through choice or necessity) have frequently intermixed therein some words of a Gothic original; which is, more or less, the case in every country of Europe, and therefore not to be imputed as any peculiar blemish in our English legal latinity. The truth is, what is generally denominated law-Latin is in reality a mere technical language, calculated for eternal duration, and easy to be apprehended both in present and future times; and on those accounts best suited to preserve those memorials which are intended for perpetual rules of action. The rude pyramids of Egypt have endured from the earliest ages, while the more modern and more elegant structures of Attica, Rome, and Palmyra, have sunk beneath the stroke of time.

As to the objection of locking up the law in a strange and unknown tongue, this is of little weight with regard to records; which few have occasion to read, but such as do, or ought to, understand the rudiments of Latin. And besides, it may be observed of the law-Latin, as the very ingenious Sir John Davis observes of the law-French, "that it is so very easy to be learned, that the meanest wit that ever came to the study of the law doth come to understand it almost perfectly in ten days without a reader."

It is true, indeed, that the many terms of art, with which the law abounds, are sufficiently harsh when Latinized (yet not more so than those of other sciences), and may, as Mr Selden observes, give offence to some grammarians of squeamish stomachs, who would rather choose to live in ignorance of things the most useful and important, than to have their delicate ears wounded by the use of a word unknown to Cicero, Sallust, or the other writers of the Augustan age." Yet this is no more than must unavoidably happen when things of modern use, of which the Romans had no idea, and consequently no phrases to express them, come to be delivered in the Latin tongue. It would puzzle the most classical scholar to find an appellation, in his pure Latinity, for a constable, a record, or a deed of feoffment: it is therefore to be imputed as much to necessity as ignorance, that they were styled in our forensic dialect, coetabularius, recordum, and feoffamentum. Thus again, another uncouth word of our ancient laws (for I defend not the ridiculous barbarisms sometimes introduced by the ignorance of modern practitioners), the substantive murdrum, or the verb murdrare, however harsh and uncouthly it may seem, was necessarily framed to express a particular offence; since no other word in being, occidere, interficere, necare, or the like, was sufficient to express the intention of the criminal, or quo animo the act was perpetrated; and therefore by no means came up to the notion of murder at present entertained by a law; viz. a killing with malice aforethought.

A similar necessity to this produced a similar effect at Byzantium, when the Roman laws were turned into Greek for the use of the oriental empire: for, without any regard to Attic elegance, the lawyers of the imperial courts made no scruple to translate sidi commif- be made, 6 Geo. II. c. 14, which allows all technical words to continue in the usual language, and has thereby defeated every beneficial purpose of the former statute.

Trial by Wager of Law, (vadiatio legis;) a species of trial, in the English law, so called, as another species is styled "wager of battel," vadiatio duelli, (see Battel): because, as in the wager of battel, the defendant gave a pledge, gage, or vadium, or try the cause by battel; so here he was put in sureties or vadios, that at such a day he will make his law, that is, take the benefit which the law has allowed him, (see the article Trial). For our ancestors considered, that there were many cases where an innocent man, of good credit, might be overborne by a multitude of false witnesses; and therefore established this species of trial, by the oath of the defendant himself: for if he will absolutely swear himself not chargeable, and appears to be a person of reputation, he shall go free, and for ever acquitted of the debt, or other cause of action.

The manner of waging and making law is this. He that has waged, or given security, to make his law, brings with him into court eleven of his neighbours: a custom which we find particularly described so early as in the league between Alfred and Guthrun the Dane; for by the old Saxon constitution every man's credit in courts of law depended upon the opinion which his neighbours had of his veracity. The defendant then, standing at the end of the bar, is admonished by the judges of the nature and danger of a false oath. And if he still persists, he is to repeat this or the like oath: "Hear this, ye justices, that I do not owe unto Richard Jones the sum of ten pounds nor any penny thereof, in manner and form as the said Richard hath declared against me. So help me God." And thereupon his eleven neighbours or compurgators shall avow upon their oaths, that they believe in their consciences that he faith the truth; so that himself must be sworn de fidelitate, and the eleven de credulitate.

In the old Swedish or Gothic constitution, wager of law was not only permitted, as it is in criminal cases, unless the fact be extremely clear against the prisoner; but was also absolutely required, in many civil cases: which an author of their own very justly charges as being the source of frequent perjury. This, he tells us, was owing to the Popish ecclesiastics, who introduced this method of purgation from their canon law; and, having sown a plentiful crop of oaths in all judicial proceedings, reaped afterwards an ample harvest of perjuries: for perjuries were punished in part by pecuniary fines, payable to the coffers of the church. But with us in England wager of law is never required; and then only admitted, where an action is brought upon such matters as may be supposed to be privately transacted between the parties, and wherein the defendant may be presumed to have made satisfaction without being able to prove it. Therefore it is only in actions of debt upon simple contract, or for amercement, in actions of detinue, and of account, where the debt may have been paid, the goods restored, or the account balanced, without any evidence of either. And by such wager of law (when admitted) the plaintiff is perpetually barred; for the law, in the simplicity of the ancient times, presumed that no one would forswear himself for any worldly thing. Wager of law, however, lieth in a real action, where the tenant alleges he was not legally summoned to appear, as well as in mere personal contracts.

The wager of law was never permitted but where the defendant bore a fair and unreproachable character; and it was also confined to such cases where a debt might be supposed to be discharged, or satisfaction made in private, without any witnesses to attest it: and many other prudential restrictions accompanied this indulgence. But at length it was considered, that (even under all its restrictions) it threw too great a temptation in the way of indigent or profligate men: and therefore by degrees new remedies were devised, and new forms of action were introduced, wherein no defendant is at liberty to wage his law. So that now no plaintiff need at all apprehend any danger from the hardness of his debtor's conscience, unless he voluntarily chooses to rely on his adversary's veracity, by bringing an obsolete, instead of a modern, action. Therefore, one shall hardly hear at present of an action of debt brought upon a simple contract: that being supplied by an action of trespass on the case for the breach of a promise or assumpsit; wherein, though the specific debt cannot be recovered, yet damages may, equivalent to the specific debt. And, this being an action of trespass, no law can be waged therein. So, instead of an action of detinue to recover the very thing detained, an action of trespass on the case in trover and conversion is usually brought; wherein, though the horse or other specific chattel cannot be had, yet the defendant shall pay damages for the conversion, equal to the value of the chattel; and for this trespass also no wager of law is allowed. In the room of actions of account, a bill in equity is usually filed: wherein, though the defendant answers upon his oath, yet such oath is not conclusive to the plaintiff; but he may prove every article by other evidence, in contradiction to what the defendant has sworn. So that wager of law is quite out of use, being avoided by the mode of bringing the action; but still it is not out of force. And therefore, when a new statute inflicts a penalty, and gives an action of debt for recovering it, it is usual to add, "in which no wager of law shall be allowed;" otherwise an hardy delinquent might escape any penalty of the law, by swearing he had never incurred, or else had discharged it.

Custom-House Laws. The expedient of exacting duties on goods imported, or exported, has been adopted by every commercial nation in Europe. The attention of the British legislature has not been confined to the object of raising a revenue alone, but they have attempted by duties, exemptions, drawbacks, bounties, and other regulations, to direct the national trade into those channels that contribute most to the public benefit. And, in order to obtain every requisite information, all goods, exported or imported, whether liable to duty or not, are required to be entered at the respective custom-houses; and, from these entries, accounts are regularly made up of the whole British trade, distinguishing the articles, their quantity and value, and the countries which supply or receive them.

The objects of the British legislature may be reduced to the following heads: First, To encourage the employment of British shipping and seamen, for the purpose of supplying our navy when public exigencies require.

Secondly, To increase the quantity of money in the nation, by prohibiting the exportation of British coin, by encouraging exportation, and discouraging importation, and by promoting agriculture, fisheries, and manufactures. For these purposes, it is penal to entice certain manufacturers abroad, or export the tools used in their manufactures; the exportation of raw materials is, in most instances, prohibited; and their importation permitted free from duty, and sometimes rewarded with a bounty. The exportation of some goods, manufactured to a certain length only (for example white cloth), is loaded with a duty, but permitted duty-free when the manufacture is carried to its full extent. The importation of rival manufactures is loaded with heavy duties, or absolutely prohibited. These restrictions are most severe towards nations with which the balance of trade is supposed against us, or which are considered as our most formidable rivals in power or commerce. Upon this principle the commerce with France, till lately, laboured under the heaviest restrictions.

Thirdly, To secure us plenty of necessaries for subsistence and manufacture, by discouraging the exportation of some articles that consume by length of time, and regulating the corn-trade according to the exigencies of the seasons.

Fourthly, To secure the trade of the colonies to the mother-country, and preserve a mutual intercourse, by encouraging the produce of their staple-commodities, and restraining their progres in these manufactures which they receive from us in exchange.

The foundation of our commercial regulations is the famous act of navigation, which was first enacted during the time of the commonwealth, and adopted by the first parliament after the restoration. The substance of this act, and subsequent amendments, is as follows.

1. Goods from Asia, Africa, and America, may not be imported, except in British ships duly navigated, or ships belonging to the British plantations; and they can only be imported from the place of their production or manufacture, or the port where they are usually first shipped for transportation. Goods of the Spanish or Portuguese plantations, imported from Spain and Portugal in British ships, bullion and some other inconsiderable articles are excepted.

The restriction on European goods is not universal, but extends to several of the bulkiest articles. Russian goods, masts, timber, boards, salt, pitch, rosin, tar, hemp, flax, raisins, figs, prunes, olives, oil, corn, sugar, potashes, wine, and vinegar, may not be imported, except in ships belonging to Great Britain or Ireland, legally manned; nor Turkey goods and currants, except in ships British built; or in ships belonging to the country where these goods are produced or manufactured, or first shipped for exportation; and, if imported in foreign ships, they pay alien's duty.

In order to intitle a ship to the privileges of a British ship, it must be built in Britain, and belong entirely to British subjects; and the master, and three-fourths of the mariners, must be British subjects, except in case of death, or unavoidable accidents. In time of war, the proportion of British mariners required is generally confined to one-fourth; and the same proportion only is required in the Greenland fishery.

No goods may be imported into, or exported from, the plantations in Asia, Africa, or America, except in ships built in Britain, Ireland, or the plantations, or prize-ships, manned by British subjects, duly registered, and legally navigated.

The following goods, enumerated in the act of navigation and subsequent acts, may not be exported from the plantations, except to some other plantation or to Britain: Tobacco, cotton-wool, indigo, ginger, fulvic, and other dying wood, molasses, hemp, copperore, beaver-skins and other furs, pitch, tar, turpentine, maits, yards, and bollprits, coffee, pymento, cocoa-nuts, whale fins, raw silk, pot and pearl ashes. Rice and sugar were formerly comprehended in this list, but their exportation is now permitted under certain restrictions.

Iron may not be imported to Europe, except to Ireland; and none of the non-enumerated may be imported to any country north of Cape Finisterre, except the Bay of Biscay and Ireland.

2. For the more effectual prevention of smuggling, no goods may be imported in vessels belonging to British subjects, and no wine, in any vessel whatever, unless the master have a manifest on board, containing the name, measure, and built of the ship, the place to which it belongs, and a distinct enumeration of the goods on board, and places where they were laden. If the ship be cleared from any place under his Majesty's dominions, the manifest must be attested by the chief officer of the customs, or chief magistrate, who is required to transmit a copy thereof to the place of destination. Ship-masters must deliver copies of this manifest to the first custom-house officer who goes on board within four leagues of the shore, and also to the first who goes on board within the limits of any port, and must deliver the original manifest to the custom-house at their arrival, and make report of their cargo upon oath. If the report disagree with the manifest, or either disagree with the cargo on board, the ship-master is liable in the penalty of £200. The proprietors of the goods must enter them, and pay the duties within 20 days; otherwise they may be carried to the custom-house, and sold by auction, if not relieved within six months; and the surplus of the value, after paying duty and charges, paid to the proprietors.

3. The importation of cattle, beef, mutton, and pork, except from Ireland, woollen cloths, malt, and various articles of hardware, cutlery, and earthen ware, is prohibited: Also the following goods from Germany and the Netherlands; olive oil, pitch, tar, potashes, rosin, salt, tobacco, wines, except Rhenish wine, and Hungary wines from Hamburgh.

4. The importation of various other goods is restricted by particular regulations respecting the time and place of importation, the packages, the burden of the ship, the requisition of a licence, and other circumstances.

To guard more effectually against clandestine trade, the importation of some articles is only permitted in ships of a certain burden, whose operations are not easily concealed. Spirits must be imported in ships of 100 tons or upwards, except rum, and spirits of British plantations, which are only restricted to 70 tons; wine, 60 tons; tea, tobacco, and snuff, 50 tons; salt, 40 tons. Wine, spirits, and tobacco are also restricted in respect of the packages in which they may be imported.

5. Diamonds and precious stones, flax, flax-seed, linen-rags, beaver-wool, wool for clothiers, linen yarn unbleached, and most drugs used in dying, may be imported duty free.

6. All goods imported are liable to duties, except such as are expressly exempted. The revenue of customs is of great antiquity in Britain, but was new-modelled at the restoration of Charles II. A subsidy of tonnage on wines, and of poundage, or 1s. per pound value of other goods, was granted during the king's life, and, after several prolongations, rendered perpetual. A book of rates was composed for ascertaining these values; and articles not rated paid duty according to the value, as affirmed upon oath by the importer. If the goods be valued too low by the importer, the custom-house officer may seize them, upon paying to the proprietor the value he swore to, and 10 per cent. for profit; such goods to be sold, and the overplus paid into the customs. Various additional duties have been imposed; some on all goods, some on particular kinds; some according to the rates, some unconnected with the rates; some with an allowance of certain abatements, some without any allowance; the greater part to be paid down in ready money, and a few for which security may be granted; often with variations, according to the ship's place and circumstances of importation. The number of branches amounted to upwards of 50; and sometimes more than 10 were chargeable on the same articles. By this means, the revenue of the customs has become a subject of much intricacy. The inconveniences which this gave rise to are now removed by the consolidation act; which appoints one fixed duty for each article free from fractions, instead of the various branches to which they were formerly subject.

7. Goods of most kinds may be exported duty free when regularly entered; and those that have paid duty on importation are generally entitled to drawback of part, sometimes of the whole, when re-exported within three years, upon certificate that the duties were paid on importation, and oath of their identity. In some cases, a bounty is given on manufactured goods, when the materials from which they are manufactured have paid duty on importation; and manufactures subject to excise, have generally the whole or part of the excise duties returned.

8. The following goods are prohibited to be exported; white-ashes, horns, unwrought hides of black-cattle, tallow, coin, brafs, copper, engines for knitting stockings, tools for cotton, linen, woollen, silk, iron, and steel manufactures; wool, woolfells, woollen yarn, fullers earth, fulling clay, and tobacco pipe-clay.

9. The object of the laws respecting the corn-trade is to encourage agriculture, by not only permitting the free exportation, but rewarding it with a bounty when the prices are low, and checking the importation by a heavy duty; and, to prevent scarcity, by prohibiting the exportation when the prices are high, and permitting importation at an easy duty. Various temporary laws have been enacted for these purposes, and sometimes other expedients employed in times of scarcity, such as prohibiting the distillery from corn, and manufacture of starch: And by a permanent law 1773, the low duties and bounties are regulated as under:

| Low duty. | Bounty. | |-----------|---------| | Wheat at or above 48 s. per qr | under 44 s. 5 s. | | Rye, 32 s. | 28 s. 3 s. | | Pease and beans, 32 s. | 28 s. no bounty. | | Oats, 16 s. | 14 s. 2 s. | | Barley, 24 s. | 22 s. 2 s. 6 d. |

The duties, when the prices are lower than in the first column, amount to a prohibition. When the prices are higher than in the column prefixed to the bounty, no exportation is permitted. When oats are under the bounty price, oatmeal is entitled to a bounty of 2 s. 6 d. per quarter.

10. Bounties are allowed on the exportation of refined sugar, sail-cloth, linen under limited prices, silk stuffs of British manufacture, cordage, spirits when barley is under 24 s. beef, pork, and the following kinds of fish, salmon, herrings, pilchards, cod, ling, flake, and sprats.

Various other bounties are allowed for the encouragement of our fisheries. Ships from 150 to 300 tons employed in the Greenland whale-fishery, and conforming to the regulations prescribed, are allowed 30 s. per ton. Vessels employed in the herring-fishery receive 20 s. per ton, besides a bounty on the herrings caught and cured, amounting in some cases to 48 s. per barrel. Other bounties are granted to a limited number of the most successful vessels employed in the herring and Newfoundland fisheries, and in the southern whale-fishery.

It is unnecessary and impracticable, in this place, to enter into a full detail of our custom-house laws. Indeed, all that can be admitted into a work of this kind, must convey but very imperfect information; and even that little becomes useless in a short time from alterations in the law. We have therefore only marked the general outlines in the present article; which, however, will be sufficient to enable the reader to judge of the principles upon which the British legislature has acted. How far the means employed have contributed to the ends proposed, and how far the ends themselves are always wise; or whether a trade encumbered by fewer restrictions would not prove more extensive and beneficial; has been a subject of much discussion; and of late a more liberal system has been embraced in our commercial treaty with France, and in other regulations.

Mercantile Laws. The laws relating to commercial and maritime affairs approach nearer to uniformity through... through the different countries of Europe, than those on other subjects. Some of the fundamental regulations have been taken from the Roman law; others have been suggested by experience, during the progress of commerce; and the whole have been gradually reduced to a system, and adopted into the laws of trading nations, but with some local varieties and exceptions.

The British legislature has enacted many statutes respecting commerce; yet the greater part of our mercantile law is to be collected from the decisions of our courts of justice, founded on the custom of merchants. A proof of such custom, where no direct statute interferes, determines the controversy, and becomes a precedent for regulating like cases afterwards. The existence of a custom not formerly recognized, is, in England, determined by a jury of merchants.

The most common mercantile contracts are those between buyer and seller; between factor and employer; between partners; between the owners, masters, mariners, and freighters of ships; between insurers and the owners of the subject insured; and between the parties concerned in transacting bills of exchange. See FACTORAGE, SALE, PARTNERSHIP, INSURANCE, BILL, &c. and the next article.

Maritime Laws. The most ancient system of maritime laws is that of Rhodes, which was in force during the time of the Grecian empire, and afterwards incorporated into the Roman law. Although, in some parts, not applicable to the present state of trade, and, in others, now hardly intelligible, it contains the groundwork of the most equitable and beneficial rules observed in modern commerce. A like system was set forth by Richard I. of England, called the Statutes of Oleron; and another, by the town of Wilby, in the island of Gothland. From these systems, improved and enlarged in the course of time, our general maritime law is derived. The jurisdiction of matters purely maritime belongs, in England, to the court of admiralty, which proceeds on the civil law; but their proceedings are subject to the control, and their decisions to the review, of the superior courts.

We shall here consider the obligations which subsist between the masters or owners of ships, the freighters, and the furnishers of provisions or repairs.

1. Masters and Freighters. A charter-party is a contract between the master and freighters, in which the ship and voyage is described, and the time and conditions of performing it are ascertained.

The freight is most frequently determined for the whole voyage, without respect to time. Sometimes it depends on the time.

In the former case, it is either fixed at a certain sum for the whole cargo; or so much per ton, barrel-bulk, or other weight or measure; or so much per cent. on the value of the cargo. This last is common on goods sent to America; and the invoices are produced to ascertain the value.

The burden of the ship is generally mentioned in the contract, in this manner, one hundred tons, or thereby; and the number mentioned ought not to differ above 5 tons, at most, from the exact measure. If a certain sum be agreed on for the freight of the ship, it must all be paid, although the ship, when measured, should prove less, unless the burden be warranted. If the ship be freighted for transporting cattle, or slaves, at so much a head, and some of them die on the passage, freight is only due for such as are delivered alive; but, if for loading them, it is due for all that were put on board.

When a whole ship is freighted, if the master suffers any other goods besides those of the freighter to be put on board, he is liable for damages.

It is common to mention the number of days that the ship shall continue at each port to load or unload. The expression used is work weather days; to signify, that Sundays, holidays, and days when the weather stops the work, are not reckoned. If the ship be detained longer, a daily allowance is often agreed on, in name of demurrage.

If the voyage be completed in terms of the agreement, without any misfortune, the master has a right to demand payment of the freight before he delivers the goods. But if the safe delivery be prevented by any fault or accident, the parties are liable, according to the following rules.

If the merchant do not load the ship within the time agreed on, the master may engage with another, and recover damages.

If the merchant load the ship, and recall it after it has set sail, he must pay the whole freight; but if he unload it before it sets sail, he is liable for damages only.

If a merchant loads goods which it is not lawful to export, and the ship be prevented from proceeding on that account, he must pay the freight notwithstanding.

If the shipmaster be not ready to proceed on the voyage at the time agreed on, the merchant may load the whole, or part of the cargo, on board another ship, and recover damages; but chance, or notorious accident, by the marine law, releases the matter from damages.

If an embargo be laid on the ship before it sails, the charter-party is dissolved, and the merchant pays the expense of loading and unloading; but if the embargo be only for a short limited time, the voyage shall be performed when it expires, and neither party is liable for damages.

If the shipmaster fails to any other port than that agreed on, without necessity, he is liable for damages; if through necessity, he must fail to the port agreed on, at his own expense.

If a ship be taken by the enemy, and retaken or ransomed, the charter-party continues in force.

If the master transfer the goods from his own ship to another, without necessity, and they perish, he is liable for the value; but if his own ship be in imminent danger, the goods may be put on board another ship at the risk of the owner.

If a ship be freighted out and home, and a sum agreed on for the whole voyage, nothing is due till its return; and the whole is lost if the ship be lost on the return.

If a certain sum be specified for the homeward voyage, it is due, although the factor abroad should have no goods to send home.

In the case of a ship freighted to Madeira, Carolina, and home, a particular freight fixed for the homeward voyage, and an option referred for the factor at Carolina. Carolina to decline it; unless the ship arrived before 1st of March: the shipmaster, foreseeing he could not arrive there within that time, and might be disappointed of a freight, did not go there at all. He was found liable in damages, as the obligation was absolute on his part, and conditional only on the other.

If the goods be damaged without fault of the ship or master, the owner is not obliged to receive them and pay freight, but he must either receive the whole, or abandon the whole; he cannot choose those that are in best order, and reject the others. If the goods be damaged through the insufficiency of the ship, the master is liable for the same; but, if it be owing to stress of weather, he is not accountable. It is customary for shipmasters, when they suspect damage, to take a protest against wind and weather at their arrival. But as this is the declaration of a party, it does not bear credit, unless supported by collateral circumstances.

If part of the goods be thrown overboard, or taken by the enemy, the part delivered pays freight.

The shipmaster is accountable for all the goods received on board, by himself or mariners, unless they perish by the act of God, or of the king's enemies.

Shipmasters are not liable for leakage on liquors; nor accountable for the contents of packages, unless packed and delivered in their presence.

Upon a principle of equity, that the labourer is worthy of his hire, differences arising with regard to freight, when the case is doubtful, ought rather to be determined in favour of the shipmaster.

2. Ship and Owners with Creditors. When debts are contracted for provisions or repairs to a ship, or arise from a failure in any of the above mentioned obligations, the ship and tackle, and the owners, are liable for the debt, as well as the master.

By the mercantile law, the owners are liable in all cases, without limitation; but by statute, they are not liable for embezzlement beyond their value of ship, tackle, and freight.

A shipmaster may pledge his ship for necessary repairs during a voyage; and this hypothecation is implied by the maritime law when such debts are contracted. This regulation is necessary, and is therefore adopted by all commercial nations; for, otherwise, the master might not find credit for necessary repairs, and the ship might be lost. If repairs be made at different places, the last are preferable.

The relief against the ship is competent to the court of admiralty in England, only when repairs are furnished during the course of a voyage; for the necessity of the case extends no further. If a ship be repaired at home (e.g., upon the river Thames), the creditor is only entitled to relief at common law.

The creditor may sue either the masters or owners; but if he undertook the work on the special promise of the one, the other is not liable.

If the master buys provisions on credit, the owners are liable for the debt, though they have given him money to pay them.

If a ship be mortgaged, and afterwards lost at sea, the owners must pay the debt; for the mortgage is only an additional security, though there be no express words to that purpose in the covenant.

If a ship be taken by the enemy, and ransomed, the owners are liable to pay the ransom, though the ransomer die in the hands of the captors.

3. Owners of Ship and Cargo with each other. There is a mutual obligation which subsists between all the owners of a ship and cargo. In time of danger, it is often necessary to incur a certain loss of part for the greater security of the rest; to cut a cable; to lighten the ship, by throwing part of the goods overboard; to run it ashore; or the like; and as it is unreasonable that the owners of the thing exposed for the common safety should bear the whole loss, it is defrayed by an equal contribution among the proprietors of the ship, cargo, and freight. This is the famous Lex Rhodia de jactu, and is now called a general average.

The custom of valuing goods which contribute to a general average, is not uniform in all places. They are generally valued at the price they yield at the port of destination, charges deducted; and goods thrown overboard are valued at the price they would have yielded there. Sailors wages, cloaths and money belonging to passengers, and goods belonging to the king, pay no general average; but proprietors of gold and silver, in case of goods being thrown overboard, contribute to the full extent of their interest.

The following particulars are charged as general average: Damage sustained in an engagement with the enemy; attendance on the wounded, and rewards given for service in time of danger, or gratuities to the widows or children of the slain; ransom; goods given to the enemy in the nature of ransom; charges of bringing the ship to a place of safety when in danger from the enemy, or waiting for convoy; charges of quarantine; goods thrown overboard; masts or rigging cut; holes cut in the ship to clear it of water; pilotage, when a lake is sprung; damage, when voluntarily run aground, and expense of bringing it afloat; goods lost by being put in a lighter; the long boat lost in lightening the ship in time of danger; hire of cables and anchors; charges of laying in ballast, victualling, and guarding the ship when detained; charges at law, in reclaiming the ship and cargo; interest and commission on all these debursements.

Though goods put on board a lighter, and lost, are charged as a general average; yet if the lighter be saved, and the ship with the rest of the goods be lost, the goods in the lighter belong to their respective proprietors, without being liable to any contribution.

If part of the goods be plundered by a pirate, the proprietor or shipmaster is not intitled to any contribution.

The essential circumstances that constitute a general average are these; the loss must be the effect of a voluntary action; and the object of that action the common safety of the whole. Quarantine, which is allowed, seems not to fall within this description.

4. Quarantine. See QUARANTINE.

5. Wracks. See WRECK.

6. Impress. See IMPRESSING.

7. Insurance. See INSURANCE.

Game-Laws. See the article GAME.

Sir William Blackstone, treating of the alterations in our laws, and mentioning franchises granted of chase and free warren, as well to preserve the breed of ani- mals, as to indulge the subject, adds, "From a similar principle to which, though the forest-laws are now mitigated, and by degrees grown entirely obsolete; yet from this root has sprung a bastard slip, known by the name of the game-law, now arrived to and wandroning in its highest vigour: both founded upon the same unreasonable notion of permanent property in wild creatures; and both productive of the same tyranny to the commons; but with this difference, that the forest-laws established only one mighty hunter throughout the land; the game laws have raised a little Nimrod in every manor. And in one respect the ancient law was much less unreasonable than the modern; for the king's grantee of a chase or free-warren, might kill game in every part of his franchise; but now, though a freeholder of less than L. 100 a-year is forbidden to kill partridge upon his own estate, yet nobody else (not even the lord of the manor, unless he hath a grant of free warren) can do it without committing a trespass and subjecting himself to an action.

Under the article Game, the destroying such beasts and fowls as are ranked under that denomination, was observed (upon the old principles of the forest-law) to be a trespass and offence in all persons alike, who have not authority from the crown to kill game (which is royal property) by the grant of either a free warren, or at least a manor of their own. But the laws called the game-laws have also inflicted additional punishments (chiefly pecuniary) on persons guilty of this general offence, unless they be people of such rank or fortune as is therein particularly specified. All persons, therefore, of what property or distinction soever, that kill game out of their own territories, or even upon their own estates, without the king's licence expressed by the grant of a franchise, are guilty of the first original offence of encroaching on the royal prerogative. And those indigent persons who do so, without having such rank or fortune as is generally called a qualification, are guilty, not only of the original offence, but of the aggravations also created by the statutes for preserving the game: which aggravations are so severely punished, and those punishments so implausibly inflicted, that the offence against the king is seldom thought of, provided the miserable delinquent can make his peace with the lord of the manor. The only rational footing upon which this offence, thus aggravated, can be considered as a crime, is, that in low and indigent persons it promotes idleness, and takes them away from their proper employments and callings: which is an offence against the public police and economy of the commonwealth.

The statutes for preserving the game are many and various, and not a little obscure and intricate; it being remarked, that in one statute only, 5 Ann. c. 14, there is false grammar in no fewer than five places, besides other mistakes: the occasion of which, or what denomination of persons were probably the penners of these statutes, it is unnecessary here to inquire. It may be in general sufficient to observe, that the qualifications for killing game, as they are usually called, or more properly the exemptions from the penalties inflicted by the statute law, are, 1. The having a freehold estate of L. 100 per annum; there being fifty times the property required to enable a man to kill a partridge, as to vote for a knight of the shire. 2. A leasehold for 99 years of L. 150 per annum. 3. Being the son and heir apparent of an esquire (a very loose and vague description) or person of superior degree. 4. Being the owner or keeper of a forest, park, chace, or warren. For unqualified persons transgressing these laws, by killing game, keeping engines for that purpose, or even having game in their custody, or for persons (however qualified) that kill game, or have it in possession, at unseasonable times of the year, or unseasonable hours of the day or night, on Sundays or on Christmas day, there are various penalties assigned, corporal and pecuniary, by different statutes (after-mentioned), on any of which, but only on one at a time, the justices may convict in a summary way, or (in most of them) prosecutions may be carried on at the assizes. And, lastly, by statute 28 Geo. II. c. 12, no person, however qualified to kill, may make merchandise of this valuable privilege, by selling or exposing to sale any game, on pain of like forfeiture as if he had no qualification.

The statutes above referred to are as follow. No person shall take pheasants or partridges with engines in another man's ground, without licence, on pain of 10l. flat. 11 Hen. VII. c. 13. If any person shall take or kill any pheasants or partridges with any net in the night-time, they shall forfeit 20s. for every pheasant, and 10s. for every partridge taken; and hunting with spaniels in standing corn, incurs a forfeiture of 40s. 23 Eliz. c. 10. Those who kill any pheasant, partridge, duck, heron, hare, or other game, are liable to a forfeiture of 20s. for every fowl and hare; and selling, or buying to sell again, any hare, pheasant, &c., the forfeiture is 10s. for each hare, &c. 1 Jac. I. c. 17. All pheasants or partridges are not to be taken between the first of July and the last of August, on pain of imprisonment for a month, unless the offenders pay 20s. for every pheasant, &c., killed: and constables, having a justice of peace's warrant, may search for game and nets, in the possession of persons not qualified by law to kill game or to keep such nets, 7 Jac. I. c. 11. Constables, by a warrant of a justice of peace, are to search houses of suspected persons for game: and if any game be found upon them, and they do not give a good account how they came by the same, they shall forfeit for every hare, pheasant, or partridge, not under 5s. nor exceeding 20s. And inferior tradesmen hunting, &c. are subject to the penalties of the act, and may likewise be sued for trespass. If officers of the army or soldiers kill game without leave, they forfeit 5l. an officer, and 10s. a soldier; 4 & 5 W. and M. c. 23. Higgler, chapmen, carriers, inn-keepers, victuallers, &c. having in their custody hare, pheasant, partridge, heath-game, &c. (except sent by some person qualified to kill game), shall forfeit for every hare and fowl 6l. to be levied by distresses and sale of their goods, being proved by one witness, before a justice; and for want of distress shall be committed to the house of correction for three months: one moiety of the forfeiture to the informer, and the other to the poor. And killing game, or offering the same to sale, incurs the like penalty; whereas hare and other game found in a shop, &c. is adjudged an exposing to sale: killing hares in the night is liable to the same penalties: and if any persons shall drive wild-fowls with nets, between the first day of July and... and the first of September, they shall forfeit 5s. for every fowl; 5 Ann. c. 14. 9 Ann. c. 25. If any unqualified person shall keep a gun, he shall forfeit 10l.; and persons being qualified may take guns from those that are not, and break them; 21 & 22 Car. II. c. 25. and 33 H. VIII. c. 6. One justice of peace, upon examination and proof of the offence, may commit the offender till he hath paid the forfeiture of 10l. And persons, not qualified by law, keeping dogs, nets, or other engines to kill game, being convicted thereof before a justice of peace, shall forfeit 5l. or be sent to the house of correction for three months; and the dogs, game, &c. shall be taken from them, by the statute 5 Ann. If a person hunt upon the ground of another, such other person cannot justify killing of his dogs, as appears by 2 Roll. Abr. 567. But it was otherwise adjudged Mich. 33 Car. II. in C. B. 2 Cro. 44. and see 3 Lev. xxviii. In actions of debt, qui tam, &c. by a common informer on the statute 5 Ann. for 15l. wherein the plaintiff declared on two several counts, one for 10l. for killing two partridges, the other for 5l. for keeping an engine to destroy the game, not being qualified, &c. the plaintiff had a verdict for 5l. only: this action was brought by virtue of the stat. 8 Geo. I. See stat. 9 Geo. I. c. 22. See likewise 24 Geo. II. c. 34. for the better preservation of the game in Scotland. By the stat. 26 Geo. II. c. 2. all suits and actions brought by virtue of stat. 8 Geo. I. c. —— for the recovery of any pecuniary penalty, or sum of money, for offences committed against any law for the better preservation of the game, shall be brought before the end of the second term after the offence committed.

By 28 Geo. II. c. 12. persons selling, or exposing to sale, any game, are liable to the penalties inflicted by 5 Ann. c. 14. on higgler, &c. offering game to sale: and game found in the house or possession of a poulterer, fishmonger, cook, or pastry-cook, is deemed exposing thereof to sale.

By 2 Geo. III. c. 19. after the 1st June 1762, no person may take, kill, buy or sell, or have in his custody, any partridge, between 12th February and 1st September, or pheasant between 1st February and 1st October, or heath-fowl between 1st January and 20th August, or grouse between 1st December and 25th July, in any year; pheasants taken in their proper season, and kept in mews, or breeding places, excepted: and persons offending in any of the cases aforesaid, forfeit 5l. per bird, to the prosecutor, to be recovered, with full costs, in any of the courts at Westminster. By this act, likewise, the whole of the pecuniary penalties under the 8 Geo. I. c. 19. may be sued for, and recovered to the sole use of the prosecutor, with double costs; and no part thereof to go to the poor of the parish.

By 5 George III. c. 14. persons convicted of entering warrens in the night-time, and taking or killing coney there, or aiding or assisting therein, may be punished by transportation, or by whipping, fine, or imprisonment. Persons convicted on this act, not liable to be convicted under any former act. This act does not extend to the destroying coney in the daytime, on the sea and river banks in the county of Lincoln, &c. No satisfaction to be made for damages occasioned by entry, unless they exceed 1s. It may not be improper to mention an act lately made, and not yet repealed, viz. 10 Geo III. c. 19. for preservation of the game, which shows the importance of the object. It is thereby enacted, That if any person kill any hare, &c. between 1st setting and rising, or use any gun, &c. for destroying game, shall for the first offence be imprisoned for any time not exceeding six nor less than three months: if guilty of a second offence, after conviction of a first, to be imprisoned for any time not exceeding 12 months nor less than six; and shall also, within three days after the time of his commitment, either for the first or for any other offence, be once publicly whipped.

By 25 George III. c. 50. and 31 George III. c. 21. every person in Great Britain (the royal family excepted), who shall, after July 1st 1785, use any dog, gun, net, or other engine, for the taking or destruction of game (not as acting as gamekeeper), shall deliver in a paper or account in writing, containing his name and place of abode, to the clerk of the peace or his deputy, and annually take out a certificate thereof; and every such certificate shall be charged with a stamp-duty of L. 2, 2s. (and an additional L. 1, 1s. by 31 Geo. III. c. 21.) making in the whole L. 3, 3s.—Every deputation of a gamekeeper shall be registered with the clerk of the peace, and such gamekeeper shall annually take out a certificate thereof; which certificate shall be charged with a stamp duty of 10s. 6d. (and an additional 10s. 6d. by 31 Geo. III. c. 21.), making in the whole L. 1, 1s.—The duties to be under the management of the commissioners of the stamp-office.

From and after the said 1st of July 1785, the clerk of the peace shall annually deliver to persons requiring the same, duly stamped, a certificate or licence according to the form therein mentioned, for which he shall be entitled to demand 1s. for his trouble; and on refusal or neglect to deliver the same, forfeit L. 20.—Every certificate to bear date the day when issued, and to continue in force until the 1st day of July then following, on penalty of 20l.

After the 1st day of July 1785, any person that shall use any greyhound, hound, pointer, setting-dog, spaniel, or other dog, or any gun, net, or engine, for taking or killing of game, without a certificate, is liable to the penalty of 20l. And if any gamekeeper shall, for the space of 20 days after the said 1st day of July, or if any gamekeeper thereafter to be appointed shall, for the space of 20 days next after such appointment, neglect or refuse to register his deputation, and take out a certificate thereof, he is liable to the penalty of 20l.

The clerks of the peace are to transmit to the stamp-office in London alphabetical lists of the certificates granted in every year before the 1st day of August, under penalty of 20l. These lists are to be kept at the stamp-office in London, and there to be inspected on payment of 1s.: And the commissioners of the stamp duties are, once or oftener in every year, as soon as such lists are transmitted to them, to cause the same to be published in the newspapers circulating in each county, or such public paper as they shall think most proper.

If any gamekeeper, who shall have registered his deputation, and taken out a certificate thereof, shall be changed, and a new gamekeeper appointed in his stead, the first certificate is declared null and void, and and the person acting under the same after notice, is liable to the penalty of 20l. And any person in pursuit of game, who shall refuse to produce his certificate, or to tell his name and place of abode, or shall give in any false or fictitious name or place of abode to any person requiring the same, who shall have obtained a certificate, is liable to the penalty of 50l.

The certificates are not to authorise persons to kill game at any time prohibited by law, nor to give any person any right to kill game, unless such person shall be qualified so to do by the laws now in being, but shall be liable to the same penalties as if this act had not passed. [So that though by this act qualified and unqualified persons are equally included, yet having a certificate does not give an unqualified person a right to kill game; the point of right still stands upon the former acts of parliament; and any unqualified person killing game without a certificate, is not only liable to the penalty inflicted by this act, but also to all the Military Law. See Military and Marine.]

Witnesses refusing to appear on justices summons, or appearing and refusing to give evidence, forfeit 10l. The certificates obtained under deputations, not to be given in evidence for killing of game by a gamekeeper out of the manor, in respect of which such deputation or appointment was given and made. Persons counterfeiting stamps to suffer death as felons.

Penalties exceeding 20l. are to be recovered in any of his majesty's courts of record at Westminster; and penalties not exceeding 20l. are recoverable before two justices, and may be levied by distress. The whole of the penalties go to the informer.

(John), the famous projector, was the eldest son of a goldsmith burgess in Edinburgh, by Elizabeth Campbell-heiress of Laurieston near that city; and was born about the year 1681. He was bred to no business; but possessed great abilities, and a very fertile invention. He had the address, when but a very young man, to recommend himself to the king's ministers in Scotland to arrange and fit the revenue accounts, which were in great disorder at the time of settling the equivalent before the union of the kingdoms. The attention of the Scottish parliament being also turned to the contrivance of some means for supplying the kingdom with money, and facilitating the circulation of specie, for want of which the industry of Scotland languished; he proposed to them, for these purposes, the establishment of a bank of a particular kind, which he seems to have imagined might issue paper to the amount of the whole value of all the lands in the country; but this scheme the parliament by no means thought it expedient to adopt.

His father dying about the year 1704, Law succeeded to the small estate of Laurieston; but the rents being insufficient for his expenses, he had recourse to gaming. He was tall and graceful in his person, and much addicted to gallantry and finery; and giving a sort of ton at Edinburgh, he went commonly by the name of Beau Law. He was forced to fly his country, however, in the midst of his career, in consequence of having fought a duel and killed his antagonist; and in some of the French literary gazettes it is said that he ran off with a married lady. In his flight from justice he visited Italy; and was banished from Venice and Genoa, because he contrived to drain the youth of these cities of their money, by his superiority in calculation, that is, by being a cheat and a sharper. He wandered over all Italy, living on the event of the mostingular bets and wagers, which seemed to be advantageous to those who were curious after novelty; but which were always of the most certain success with regard to him. He arrived at Turin, and proposed his system to the duke of Savoy, who saw at once, that, by deceiving his subjects, he would in a short time have the whole money of the kingdom in his possession: but that sagacious prince asking him how his subjects were to pay their taxes when all their money should be gone, Law was disconcerted, not expecting such a question.

Having been banished from Italy, and thus repulsed at Turin, Law proceeded to Paris, where he was already known as a projector. In the lifetime of Louis XIV. he had transmitted his schemes to Defmarest and to Chamillard, who had rejected them as dangerous innovations. He now proposed them to the Duc d'Orleans, who desired Noailles to examine them, to be as favourable in his report as possible; and to remark such of them as were practicable. Noailles called in the affluence of several merchants and bankers who were averse to the system. Law then proposed the establishment of a bank, composed of a company, with a stock of six millions. Such an institution promised to be very advantageous to commerce. An arrest of the 2d March 1716 established this bank, by authority, in favour of Law and his associates; two hundred thousand shares were instituted of one thousand livres each; and Law deposited in it to the value of two or three thousand crowns which he had accumulated in Italy, by gaming or otherwise. This establishment very much displeased the bankers, because at the beginning business was transacted here at a very small premium, which the old financiers had charged very highly. Many people had at first little confidence in this bank; but when it was found that the payments were made with quickness and punctuality, they began to prefer its notes to ready money. In consequence of this, shares rose to more than 20 times their original value; and in 1719 their valuation was more than 80 times the amount of all the current specie in the kingdom. But the following year, this great fabric of false credit fell to the ground, and almost overthrew the French government, ruining some thousands of families; and it is remarkable, that the same desperate game was played by the South Sea directors in England, in the same fatal year, 1720. Law being exiled as soon as the credit of his projects began to fail, retired to Venice, where he died in 1729.

The principles upon which Law's original scheme was founded, are explained by himself in A Discourse concerning Money and Trade, which he published in Scotland where (as we have seen) he first proposed it. "The splendid but visionary ideas which are set forth in that and some other works upon the same principles (Dr Adam Smith observes), still continue to make an impression upon many people, and have perhaps in part contributed to that excess of banking which has of late been complained of both in Scotland and in other places."