(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 fit facerit 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 Proces.

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

(2.) This includes, 1. Summons. 2. The writ of attachment, or panis; which is sometimes the first or original process. 3. The writ of adstringas, or distress infinite. 4. The writs of copias ad respondendum, and testamentum copias: or, instead of these, in the king's bench, the bill of Middlesex, and writ of latitatis:—and, in the exchequer, the writ of quo minus. 5. The alias and pluribus writs. 6. The exigent, or writ of exigendi 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 alterations of the plaintiff and defendant in writing; under which are comprised, 1. The declaration of count; (wherein, incidentally, of the issue, nonsuit, retraxit, and discontinuance.) 2. The defence, claim of cognizance, imparlance, view, oyer, aid-prayer, voucher, or age. 3. The plea; which is either a dilatory plea (if, to the jurisdiction; 2dly, in defiability of the plaintiff; 3dly, 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, if, the general issue: or, 2dly, a special bar (wherein of justifications, the statutes of limitation, &c.) 4. Replication, rejoinder, surrejoinder, rebutter, surrebutter, &c. Therein of cloppeps, 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 pleadings, 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 it 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 nisi datur in continuance.

(3.) The determination in an issue of 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 trial 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 witness (the regular method in the civil law) is only used on a writ of dower, when the death of the husband is in issue.

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

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

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 attaint. 2. Ordinary.

(2.) The method and process of the ordinary trial by jury is, 1. The writ of venire facias to the sheriff, coroners, or elisors; with the subsequent compulsory process of habeas corpora, or adstringas. 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 proper honoris respectum, proprii defectum, proprii affectum, (which is sometimes a principal challenge, sometimes to the favour), or proprii delictum. 5. The tales de circumstantibus. 6. The oath of the jury. 7. The evidence; which is either by proofs, 1st, written; 2dly, parolae:—or, by the private knowledge of the jurors. 6. The verdict; which may be, 1st, privy; 2dly, public; 3dly, special.

SECT. XXIV. Of Judgement 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 poll: consequent upon which is the judgement.

(2.) Judgement may be arranged or layed for causes, 1. Extraneous, or debors the record; as in the case of new trials. 2. Intraneous, 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.) Judgement is the sentence of the law, pronounced by the court, upon the matter contained in the record.

(5.) Judgements 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 judgement.

Sect. XXV. Of Proceedings, in the Nature of Appeals.

(1.) Proceedings, in the nature of appeals from judgement, are, 1. A writ of attaint; to impeach the verdict of a jury; which of late has been superseded by new trials. 2. A writ of audita querela; to discharge a judgement by matter that has since happened. 3. A writ of error, from one court of record to another; to correct judgements, erroneous in point of law, and not helped by the statutes of amendment and jeofails.

(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 courts 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 judgement of the law. Which is effected, 1. Where possession of any hereditament is recovered: by writ of habere facias feifamam, possessionem, &c. 2. Where anything is awarded to be done or rendered, by a special writ for that purpose: as, by writ of abatement, in case of nuisance; retorsa babendo and copias in witheram, in replevin; disfringas and feire facias, in detinue. 3. Where money only is recovered; by writ of, 1st, Copias ad satisfacendum, against the body of the defendant; or in default thereof, feire facias against his bail. 2dly, Fieri facias, against his goods and chattels. 3dly, Levati facias, against his goods and the profits of his lands. 4thly, Elegit, against his goods, and the possession of his lands. 5thly, Extendi facias, and other process, on statutes, recognizances, &c., against his body, lands, and goods.

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 Lancashire, 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 proofs, by discovery on the oath of the party; which gives a jurisdiction in matters of account, and fraud. 2. The mode of trials; 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, slaying waste or other injuries by injunction, directing the sale of encumbered lands, &c. 4. The true construction of securities for money, by considering them merely as a pledge. 5. The execution of trust, or second uses, 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 fulipena; and, perhaps, injunction. 3. Proces of contempt; viz. (ordinarily) attachment, attachment with proclamations, commission of rebellion, feriant at arms, and sequestrations. 4. Appearance. 5. Demurrer. 6. Plea. 7. Answer. 8. Exceptions; amendments; crofs, or supplemental bills; bills of revivor, interpleader, &c. 9. Replication. 10. Issue. 11. Depositions, taken upon interrogatories; and subsequent publication thereof. 12. Hearing. 13. Interlocutory decree; feigned issue, and trial; reference to the 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 offences, or such as are mala prohibita.

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

(7.) The measure of human punishments must be determined by the wisdom of the sovereign power, and not Chap. IV.

Law of England Epitomized.

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 durefs 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 fort concerned therein, either before or after.

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

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

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

Sect. IV. Of Offences 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; through total irreligion. Penalty: fine, 2dly, through Protestant dissenting. Penalty: suspended by the toleration act. 3dly, through Popery, either in professors of the popish religion, popish recusants, convicted, or popish priests. Penalties: incapacity; double taxes; imprisonment; fines; forfeitures; abjuration of the realm; judgment of felony, without clergy; and judgement of high treason. 4. Blasphemy. Penalty: fine, imprisonment, and corporal punishment. 5. Profane swearing and cursing. Penalty: fine, or house of correction. 6. Witchcraft; or, at least, the pretence thereto. Penalty: imprisonment, and pillory. 7. Religious impostures. Penalty: fine, imprisonment, and corporal punishment. 8. Simony. Penalties: forfeiture of double value; incapacity. 9. Sabbath-breaking. Penalty: fine. 10. Drunkenness. Penalty: fine or stocks. 11. Levelling. 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 or 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 treason, created by subsequent statutes, are such as relate, 1. To Papists: as, the repeated defence of the pope's jurisdiction; the coming from beyond sea of a natural born popish priest; the renouncing of allegiance, and reconciliation to the pope or other foreign power. 2. To the coinage, or other figures 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 Law of England Enacted.

Protestant succession; as, corresponding with, or remitting to, the late Pretender's sons; endeavouring to impede the succession; writing or printing in defence of my 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.

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 coinage may be also referred). 2. Conspiring or attempting to kill a privy counsellor. 3. Serving foreign states, or inflicting soldiers for foreign service. 4. Embezzling the king's armour or flores. 5. Desertion from the king's armies by land or sea.

Sect. VIII. Of Preemunire.

(1.) Preemunire, 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 poachers 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. Affecting 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 advising speaking, in defence of the right of any pretender to the crown, or in derogation of the power of parliament to limit the succession. 12. Treating of other matters, by the assembly of peers of Scotland, convened for electing their representatives in parliament. 13. Unwarrantable undertakings by unlawful subscriptions to public funds.

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 treason trove. Penalty: fine and imprisonment.

(4.) Positive misprisions or high misdemeanors and contempts, are, 1. Mal-administration of public trusts, which includes the crime of peculation. Usual penalties: banishment; fines; imprisonment; disability. 2. Contempts against the king's prerogative. Penalty: fine, and imprisonment. 3. Contempt against his person and government. Penalty: fine, imprisonment, and infamous corporal punishment. 4. Contempts against his title. Penalties: fine, and imprisonment; or fine, and disability. 5. Contempts against his palaces, or courts of justice. Penalties: fine; imprisonment; corporal punishment; loss of right hand; forfeiture.

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 vacating records, and perverting others in courts of justice. Penalty: judgement of felony, usually without clergy. 2. Compelling prisoners to become approvers. Penalty: judgement 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 misdemeanors punishable by fine and imprisonment. 7. Returning from transportation. This is felony, without clergy. 8. Taking rewards to help one to his stolen goods. Penalty: the same as for the theft. 9. Receiving stolen goods. Penalties: transportation; fine; and imprisonment.—10. Theftbote. 11. Common barbary 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 judgement; fine; imprisonment; pillory; whipping; transportation. 16. Perjury, and subornation 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 judgement 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 affronts to the number of twelve. 2. Appearing armed, Chap. IV.

Law of armed, or hunting in disguise. 3. Threatening, or demanding any valuable thing by letter.—All these are felonies, without clergy. 4. Destroying of turnpikes, &c. Penalties: whipping; imprisonment; judgment of felony, with and without clergy. 5. Affrays. 6. Riots, routs, and unlawful assemblies. 7. Tumultuous petitioning. 8. 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: fine; 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. 4. Usury. Penalty: fine, and imprisonment. 5. Cheating. Penalties: fine; imprisonment; pillory; tumbrel; whipping, or other corporal punishment, transportation. 6. Forefalling. 7. Regrating. 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 praemunire. 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.

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.

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. Wondering, by soldiers or mariners. 4. Remaining in England, by Egyptians; or being in their fellowship one month. Both these are felonies, without clergy. 3. Common nuisances, i.e., by annoyances or purprestures in highways, bridges, and rivers; 2dly, By offensive trades and manufactures; 3dly, By disorderly houses; 4thly, By lotteries; 5thly, By cottages; 6thly, By fireworks; 7thly, By evedropping. Penalty: in all fine. 8thly, By common scolding. Penalty: the cucking stool. 6. Idlefes, idleness; vagrancy, and incorrigible rogery. Penalties: imprisonment; whipping; judgment of felony. 7. Luxury, in diet. Penalty, discretion. 8. Gaming. Penalties:

Sect. XIV. Of Homicide.

Crimes especially affecting individuals, are,

1. Against their persons. 2. Against their habitations. 3. Against their property.

Crimes against the persons of individuals, are,

1. By homicide, or destroying life. 2. By other corporal injuries.

Homicide is, 1. Justifiable. 2. Excusable. 3. Felonious.

Homicide is justifiable, 1. By necessity, and command of law. 2. By permission of law; i.e., For the furtherance of public justice; 2dly, For prevention of some forcible felony.

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

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

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.

Killing another is, 1. Manslaughter. 2. Murder.

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.

Murder is when a person, of found 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 direction.

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 fifteen 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 Law of England Epitomized.

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 twopence or under. Which is also felony, but not capital; being punished with whipping, or transportation.

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

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

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

(7.) Malicious mischief, by destroying dykes, 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 enclosures 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; judgement of felony, without clergy.

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 left. 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 Chap. IV.

Law of England Epitomized.

Sect. XXI. Of Arrests.

(1.) Regular proceedings in the courts of common law, are, 1. Arrest. 2. Commitment and bail. 3. Prosecution. 4. Proceeding. 5. Arraignment, and its incidents. 6. Plea and issue. 7. Trial and conviction. 8. Clergy. 9. Judgement, and its consequences. 10. Reversal of judgement. 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 abused the realm. 7. Approvers, and appellees. 8. Persons taken with the mainour. 9. Persons accused of arson. 10. Excommunicated persons.

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

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

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

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 subject, upon penal statutes. 2. At the suit of the king only. Either, 1. Filed by the attorney general ex officio, for such misdemeanors as affect the king's person or government; or, 2. Filed by the master of the crown office (with leave of the court of king's bench) at the relation of some private subject for other gross and notorious misdemeanors. All differing 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 Proceeds upon an Indictment.

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

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

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 fort et dure. 2. His confession; which is either simple, or by way of approbation.

Sect. XXVI. Of Plea, and its 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, 1stly, Auterfois acquit; 2dly, Auterfois convict; 3dly, Auterfois attaint; 4thly, 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 confinal. Both these have been long abolished. 3. By battle, in appeals and improvements. 4. By the peers of Great Britain. 5. By jury.

(2.) The method and proceeds of trial by jury is, 1. The impanelling of the jury. 2. Challenges; 10th, for cause; 2dly, peremptory. 3. Tales de circumstantibus. 4. The oath of the jury. 5. The evidence. 6. The verdict, either general or special.

(3.) Conviction is when the prisoner pleads, or is found guilty; whereupon, in felonies, the prosecutor is entitled 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 entitled to the benefit of clergy, except such as are now outlawed 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 Judgement, and its Consequences.

(1.) Judgement (unless any matter be offered an 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 judgement 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 fitting the courts; during the life of the offender. 2. Of personal estates, upon conviction; in all treason, misprision of treason, felony, excusable homicide, petit larceny, standing mute upon arraignment, the above-named contempts of the king's courts, and flight.

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

Sect. XXX. Of Reversal of Judgement.

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

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

(3.) When an outlawry is reversed, the party is restored to the same plight as if he had appeared upon the copias. When a judgement, 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 judgement, 1. Ex arbitrio judicis. 2. Ex necessitate legis; for pregnancy, insanity, or the trial of identity of person, which must always be tried infanter.

(2.) A pardon is a permanent avoider of the judgement by the king's majesty, in offences against his crown and dignity; drawn in due form of law, allowed in open court, and thereby making the offender a new man.

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

Sect. XXXII. Of Execution.

(1.) Execution is the completion of human punishment, and must be strictly performed in the manner which the law directs.

(2.) The warrant for execution is sometimes under the hand and seal of the judge; sometimes by writ from the king; sometimes by rule of court; but commonly by the judges signing the calendar of prisoners, with their separate judgements in the margin.

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 treatise by the legislature appears, yet it is admitted to have been the ancient law of our kingdom by express statutes. The borough laws, which were also enacted by the same King David, and the statutes of William, Alexander II., David II., and the three Roberts, are universally allowed to be genuine. Our parliaments have once and again appointed commissions to revise and amend. Law of Scotland.

amend the Regiam Magnificat, and the other ancient books of our law, and to make their report: but as no report appears to have been made, nor consequently any ratification by parliament, none of these remains are received, as of proper authority, in our courts; yet they are of excellent use in proving and illustrating our most ancient customs.

Acts of federation.

4. Our written law comprehends, (2.) The acts of federation, 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 judgement.

Authority of the civil and canon laws.

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.

Customary or common law.

6. Our unwritten or customary law, is that which without being expressly enacted by statute, derives its force from the tacit consent of king and people; which consent is precluded 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.

Decisions of the session.

7. An uniform tract of the judgements or decisions of the court of session is commonly considered as part of our customary law; and without doubt, where a particular custom is thereby fixed or proved, such custom of itself constitutes law: but decisions, though they bind the parties litigating, have not, in their own nature, the authority of law in similar cases; yet, where they continue uniform, great weight is justly laid on them. Neither can the judgements of the house of peers of Great Britain reach farther than to the parties in the appeal, since in these the peers act as judges, not as lawgivers.

Promulgation of laws.

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

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

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

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

12. A strict interpretation is to be applied, (1.) To corrective statutes, which repeal or restrict former laws; and to statutes which enact heavy penalties, or restrain the natural liberties of mankind. (2.) Laws, made on occasion of present exigencies in a state, ought not to be drawn to similar cases, after the prejudice is over. (3.) Where statutes establish certain solemnities as requisite to deeds, such solemnities are not suppliable by equivalents; for solemnities lose their nature, when they are not performed specifically. (4.) A statute, which enumerates special cases, is, with difficulty, to be extended. tended 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 cognizance of and decide causes according to law, and to carry his sentences into execution. That tract of ground, or district, within which a judge has the right of jurisdiction, is 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 an universal jurisdiction over Scotland, and they can review the decrees of inferior admirals and commissaries: but since their own decrees are subject to the review of the courts of session or judiciary, they are, in that respect, inferior courts.

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

5. Jurisdiction is either privative or cumulative. Privative jurisdiction, is that which belongs only to one court, to the exclusion of all others. Cumulative, otherwise called concurrent, is that which may be exercised by any one of two or more courts, in the same cause. In civil cumulative jurisdiction, the private pursuer has the right of election before which of the courts he shall sue; but as, in criminal questions which are prosecuted by a public officer of court, a collision of jurisdiction might happen, through each of the judges claiming the exercise of their right, that judge, by whose warrant the delinquent is first cited or apprehended (which is the first step of jurisdiction), acquires thereby (jure praeventionis) the exclusive right of judging 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 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 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 10. Where one, who has not his domicile within the territory, is to be sued before an inferior court, *ratione rei sitae*, the court of session must be applied to, whose jurisdiction is universal, and who, of course, grants letters of supplement to cite the defender to appear before the inferior judge. Where the party to be sued resides in another kingdom, and has an estate in this, the court of session is the only proper court, as the *commune forum* to all persons residing abroad; and the defender, if his estate be heritable, is considered as lawfully summoned to that court, by a citation at the market cross of Edinburgh, and pier and shore of Leith: but where a stranger, not a native of Scotland, has only a moveable estate in this kingdom, he is deemed to be so little subject to the jurisdiction of our courts, that action cannot be brought against him till his effects be first attached by an arrestment *jurisdictionis fundandae causa*; which is laid on by a warrant issuing from the supreme courts of session, or admiralty, or from that within whose territory the subject is situated, at the suit of the creditor.

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

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

13. Prorogated jurisdiction (*jurisdiction in consentien ter*) 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 judges' oath of abjuration; 3. The oath of supremacy; lastly, The oath *de fidei administratione*.

16. A party who has either properly declined the letters of jurisdiction of the judge before whom he had been advocationed, or who thinks himself aggrieved by any proceedings in the cause, may, before decree, apply to the court of session to issue letters of advocation for calling the action from before the inferior court to themselves. The grounds, therefore, upon which a party may pray for letters of 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 advocation time in trifles, no cause for a sum below twelve pounds how 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 Parliament last resort, had the right of reviewing the sentences of all our supreme courts.

3. By the treaty of Union, 1707, the parliaments of Parliament 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 therupon 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 polleffory actions, and in debts; but they had no cognizance in questions of property of heritable subjects. No appeal lay from its judgements 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 laitymen, and a president, whom it behoved to be a prelate; but spiritual judges were in 1584 partly, and in 1640 totally, prohibited. The judges of session have been always received by warrants from the crown. Anciently his majesty seems to have transferred to the court itself the right of choosing their own president; and in a sederunt recorded June 26, 1593, the king condescended to present to the lords, upon every vacancy in the bench, a list of three persons, out of which they were to choose one. But his majesty soon 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 pretender 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 entitled to any privilege, it extends to all the members of the college. They are exempted 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 themselves 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 judiciary. Special statute has given to the court of session jurisdiction in contraventions of law-burrows, defences, and breach of arrestment; and they have been in use to judge in battery pendente lite, and in felony.

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

This court formerly met upon the 12th day of June and rose upon the 11th day of August for the summer session; but now, in consequence of an act passed in the session of parliament 1790, it meets on the 12th of May and rises on the 11th of July for the summer session; the winter sederunt still remaining as formerly, viz. from the 12th of November to the 11th of March inclusive.

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

12. The office of deputies was suppressed in 1672; and five lords of session were added, as commissioners of judiciary, to the justice general and justice clerk. The justice general, if present, is constant president of the court, and in his absence the justice clerk. The kingdom is divided into three districts, and two of the judges are appointed to hold circuits in certain boroughs of each district twice in the year; one judge may proceed to business in the absence of his colleague. In trials before this court the evidence was always taken down in writing till the act 23d Geo. III. was passed; by which the judges may try and determine all causes by the verdict of an assize upon examining the witnesses viva voce, without reducing the testimony into writing, unless it shall appear more expedient to proceed in the the former way, which they have it in their power to do. This act was at first temporary, but is now made perpetual by 27th Geo. III. cap. 18.

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

14. The circuit court can also judge in all criminal causes which do not infer death or dembarnation, 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's court, judged in all questions of the revenue. In pursuance of the treaty of Union, that court was abolished, and a new court erected, consisting of the lord high treasurer of Great Britain, and a chief baron, with four other barons of exchequer; which barons are to be made of sergeants at law, English barristers, or Scots advocates of five years standing. This court has a privative jurisdiction conferred upon it, as to the duties of customs, excise, or other revenues appertaining to the king or prince of Scotland, and as to all honours and estates that may accrue to the crown; in which matters, they are to judge by the forms of proceeding used in the English court of exchequer, under the following limitations: That no debt due to the crown shall affect the debtor's real estate in any other manner than such estate may be affected by the laws of Scotland, and that the validity of the crown's titles to any honours or lands shall continue to be tried by the court of session. The barons have the powers of the Scots court transferred to them, of passing the accounts of sheriffs, or other officers who have the execution of writs issuing from, or returnable to, the court of exchequer, and of receiving resignations, and passing signatures of charters, gifts of casualties, &c. But though all these must pass in exchequer, it is the court of session only who can judge of their preference after they are completed.

16. The jurisdiction of the admiral in maritime causes was of old concurrent with that of the session. The high admiral is declared the king's justice general upon the seas, on fresh water within flood mark, and in all harbours and creeks. His civil jurisdiction extends to all maritime causes; and so comprehends questions of charter parties, freights, salvages, bottomries, &c. He exercises this supreme jurisdiction by a delegate, the judge of the high court of admiralty; and he may also name inferior deputies, whose jurisdiction is limited to particular districts, and whose sentences are subject to the review of the high court. In causes which are declared to fall under the admiral's cognizance, his jurisdiction is sole; infomuch, that the session itself, though it may review his decrees by suspension or reduction, cannot carry a maritime question from him by advoction. 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, pro-signet, per to their several jurisdictions. The courts of session and judicature used formerly the same signet, which was called the king's, because the writs issuing from them run in the king's name; and though the judicature 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 executory diligence, or for staying or prohibiting of diligence, and generally whatever passes by the warrant of the session, and is to be executed by the officers of the court. All these must, before sealing, be signed by the writers or clerks of the signet: But letters of diligence, where they are granted in a depending process, merely for probation, though they pass by the signet, must be subscribed by a clerk of session. The clerks of the signet also prepare and subscribe all signatures of charters, or other royal grants, which pass in exchequer.

Sect. III. Of inferior Judges and Courts of Scotland.

1. Sheriff (from reeve governor, and sheer 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 judicature 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 postoffice actions, as renewings, ejections, squilities, &c.; to all briefs issuing from the chancery, as of inquest, terce, divition, tutory, &c.; and even to adjudications of land estates, when proceeding on the renunciation of the apparent heir. His present criminal jurisdiction extends to certain capital crimes, as theft, and even murder, though it be one of the pleas of the crown; and he is competent to most questions of public police, and has a cumulative jurisdiction with justices of the peace in all riots and breaches of the peace.

3. Sheriffs have a ministerial power, in virtue of which they return juries, in order to a 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 replegacy or reclaim all criminals, subject to his jurisdiction, from any other competent court, though it were the judicature itself, to his own. He had also right, according to the most common opinion, to the single escheat of all de- nounced persons residing within his jurisdiction, even though such privilege had not been expressed in the grant of regality.

5. The Stewart was the magistrate appointed by the king over such regality lands as happened to fall to the crown by forfeiture, &c., and therefore the Stewart's jurisdiction was equal to that of a regality. The two stewartries of Kirkcudbright, and of Orkney and Zetland, make shires and 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 sheriffs and stewartries as were only parts of a shire, are dissolved; and the powers formerly veiled 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 sheriffs and stewartries that were not 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 Stewart can hereafter judge personally in any cause. One sheriff or Stewart-depute is to be appointed by the king in every shire, who must be an advocate of three years standing; and whole office as sheriff or Stewart-depute is now by 28 Geo. II. held ad vitam aut culpam.

8. The appanage, or patrimony, of the prince of Scotland, has been long erected into a regality jurisdiction, called the Principality. It is personal to the king's eldest son, upon whose death or succession it returns to the crown. The prince has, or may have, his own chancery, from which his writs issue, and may name his own chamberlain and other officers for receiving and managing his revenue. The vassals of the prince are 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 judiciary; 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 belong 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 contains powers to inquire into and judge in all capital crimes, witchcraft, felonies, and several others specially enumerated; with this limitation joined, 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 veiled in them, the reader must of necessity be referred to the excise laws; it not falling within the plan of this work, to enter into so very minute a detail as that would prove.

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

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

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

14. By the late jurisdiction act, the civil jurisdiction of a baron is reduced to the power of recovering from his vassals and tenants, the rents of his lands, and of condemning them in mill services; and of judging in causes where the debt and damages do not exceed 40s. sterling. His criminal jurisdiction is, by the same statute, limited to assaults, batteries, and other smaller offences, which may be punished by a fine not exceeding 20s. sterling, or by setting the offender in the stocks in the 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. 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 marischal, the cognizance of all crimes committed within two leagues of it. All other constabularies were dependent on him: these had castles, and sometimes boroughs, subject to their jurisdiction, as Dundee, Montrose, &c., and among other powers, now little known, they had the right of exercising criminal jurisdiction within their respective territories 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 public messages, &c. But he has also a right of jurisdiction, whereby he can punish all who usurp arms contrary to the law of arms, and deprive or suspend messengers, heralds, or pursuivants, (who are officers named by himself); but he has no cognizance of the damage arising to the private party through the messenger's fault. Messengers are subservient to the supreme courts of Session and Justiciary; and their proper business is to execute all the king's letters either in civil or criminal causes. They must find caution for the proper discharge of their duty qua messengers; and in case of any malversation, or neglect, by which damage arises to their employers, their sureties may be recurred upon for indemnification. These sureties, however, are not answerable for the conduct of the messenger in any other capacity but qua such; and therefore, if a messenger is 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 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 escheat of all persons denounced, who resided within their jurisdiction; and our civil judges got a certain proportion of the sum contained in the decree pronounced. But these were all prohibited upon regular salaries being settled upon them.

**Sect. V. Of Ecclesiastical Persons.**

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

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

3. Upon abolishing the pope's authority, the regular clergy were totally suppreised; and in place of all the different degrees which distinguished the secular clergy, we had at first only parochial presbyters or ministers and superintendants, who had the oversight of the church within a certain district; soon thereafter the church government became episcopal by archbishops, bishops, &c.; and after some intermediate turns, is now Presbyterian by kirk sessions, presbyteries, synods, and general assemblies.

4. Prelate, in our statutes, signifies a bishop, abbot, or other dignified clergyman, who in virtue of his office had a seat in parliament. Every bishop had his chapter, which consisted of a certain number of the ministers of the diocese, by whose assistance he managed the affairs of the church within that district. The nomination of bishops to vacant sees has been in the crown since 1542, though under the appearance of continuing the ancient right of election, which was in the chapter. The confirmation by the crown under the great seal, of the chapter's election, conferred a right to the spirituality of the benefice; and a second grant upon the consecration of the bishop-elect, gave a title to the temporality; but this second grant fell soon into disuse.

5. He who founded or endowed a church was an patronage, entitled 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 precentor, 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 univerfal 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 ringing of masses for deceased friends at particular altars in a church. Though all these were suppressed upon the Reformation, their founders continued pa- trons of the endowments; out of which they were allowed to provide bursars, to be educated in any of the universities.

7. Where a fund is gifted for the establishment of a second minister in a parish where the cure is thought too heavy for one, the patronage of such benefice does not belong to the donor, but to him who was patron of the church, unless either where the donor has reserved to himself the right of patronage in the donation, or where he and his successors have been in the constant use of presenting the second minister, without challenge from the patron. The right of presenting incumbents was by 1690, c. 23., taken from patrons, and vested in the heritors and elders of the parish, upon payment to be made by the heritors to the patron of 600 merks; but it was again restored to patrons, 15 An. c. 12., with the exception of the presentation held in pursuance of the former act.

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

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

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

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

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

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

14. Few of the reformed ministers were, at first, Manse provided with dwelling houses; most of the Popish clergy having, upon the first appearance of the Reformation, let their manse in feu, or in long tack: ministers therefore got a right, in 1563, to as much of these manse as would serve them, notwithstanding such feus or tacks. Where there was no parson's nor vicar's manse, one was to be built by the heritors, at the sight of the bishop, (now the presbytery), the charge not exceeding 100l. 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 entitled 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, entitled 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 kirklands within the parish as lie nearest to the kirk, and, in default of kirklands, out of temporal lands.

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

18. Ministers, beside their glebe, are entitled 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 20l. Scots yearly as an equivalent. Ministers have also freedom of forage, pasture, fuel, feed, 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 incumbent be admitted to his church before Whitunday (till which term the corns are not presumed to be fully grown), he has right to that whole year's stipend; and, if he is received after Whitunday, and before Michaelmas, he is entitled 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, he 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 entitled to a third, and the other two thirds would fall equally among the children. But the court of session, probably led by the general practice, have in this last case divided the ann into two equal parts; of which one goes to the widow, and the other among the children in 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 toches, 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 Christiainitatis; 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, committed under the authority of the bishop of Rome, was abolished. As the course of justice in consistorial causes was thereby stopped, Q. Mary, besides naming a commissary for every diocese, did, by a special grant, establish a new commissary court at Edinburgh, consisting of four judges or commissaries. This court is vested with a double jurisdiction; one diocesan, which is exercised in the special territory contained in the grant, viz. the counties of Edinburgh, Haddington, Linlithgow, Peebles, and a great part of Stirlingshire; and another universal, by which the judges confirm the testaments of all who die in foreign parts, and may reduce the decrees of all inferior commissaries, provided the reduction be pursued within a year after the decree. Bishops, upon their re-establishment in the reign of James VI. were restored to the right of naming their several commissaries.

24. As the clergy, in time 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 regard to the courts of Scotland, their jurisdiction was supreme. But, by an act 1568, the appeals from the 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 commissioners. 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 commissioners 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 commissioners, till the cause was first brought before the commissioners of Edinburgh; but that practice is now in disuse.

25. The commissioners 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 commissioners are not competent to questions of divorce, under which are comprehended questions of bastardy and adherence, when they have a connexion with the lawfulness of marriage, or with adultery.

26. Commissioners have now no power to pronounce decrees in absence for any sum above 40l. 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.

1. 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 praesenti. A promise of marriage (fidelatio sponsalitia) may be refiled 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, of a man and woman who are generally reputed husband and wife. One's acknowledgment of his marriage to the midwife whom he called to his wife, and to the minister who baptized his child, was found sufficient presumptive evidence of marriage, without the aid either of cohabitation or of habit and repete. 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 forbidden blood. By the law of Moses (Leviticus xviii.), which degrees, by the act 1567. c. 15, has been adopted by us, seconds in blood, and all remoter degrees, may all lawfully marry. By seconds in blood are meant first cousins. Marriage in the direct line is forbidden in infinitum; as it is also in the collateral line, in the special case where one of the parties is loco parentis to the other, as grand uncle, great grand uncle, &c., with respect to his grand niece, &c. The same degrees that are prohibited in consanguinity, are prohibited in affinity; which is the tie arising from marriage between one of the married pair and the blood relations of the other. Marriage also, where either of the parties is naturally unfit grounds of generation, or stands already married to a third person, is ipso jure null.

5. To prevent bigamy and incestuous marriages, Proclamations of the church has introduced proclamations of bans; of which is the ceremony of publishing the names and banishments of those who intend to intermarry in the churches where the bride and bridegroom reside, after the congregation is assembled for divine service; that all persons who know any objection to the marriage may offer it. When the order of the church is observed, the marriage is called regular; when otherwise, clandestine. Marriage is valid when entered into in either of these ways; but when clandestine, there are certain penalties imposed upon the parties as well as the celebrator and witnesses.

6. By marriage, a society is created between the married pair, which draws after it a mutual communication of their civil interests, in as far as is necessary for maintaining it. As the society lasts only for the joint lives of the foci; 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. Chap. I.

Law of Scotland.

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 afflication, 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 paraphernalia 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 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 paraphernalia, by the husband's giving them to the wife, at or before marriage; but they are paraphernalia 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, so also is his burden; for it reaches to her whole moveable debts, though they should far exceed her moveable estate. Yet the husband is not considered as the true debtor in his wife's debts. In all actions for payment, she is the proper defender: the husband is only cited for his interest; that is, as curator to her, and administrator of the society goods. As soon therefore as the marriage is dissolved, and the society goods thereby suffer a division, the husband is no farther concerned in the share belonging to his deceased wife: and consequently is no longer liable to pay her debts, which must be recovered from her representatives or her separate estate.

10. This obligation upon the husband is, however, perpetuated against him, (1.) Where his proper estate, real or personal, has been affected, during the marriage, by complete legal diligence; in which case, the husband must, by the common rules of law, relieve his property from the burden with which it stands charged; but the utmost diligence against his person is not sufficient to perpetuate the obligation; nor even incomplete diligence against his estate. (2.) The husband continues liable, even after the wife's death, in so far as he is *lucratus* 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 *lucratus* 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 *lucratus*, he is, after the dissolution, only liable for them *subsidiarie*, i.e. if her own separate estate is not sufficient to pay them off.

11. Where the wife is debtor in that sort of debt, which, if it had been due to her, would have excluded the *jus mariti*, e.g. in bonds bearing interest, which, as we shall afterwards see (clxiii. 4.), continues heritable as to the rights of husband and wife, notwithstanding the enactment of the statute 1661, which renders them movable 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 commutated 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 the is *velita 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 the sue in any action without the husband's 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 authorize her to sue in her own name. The effects arising from this curatorial power discover themselves even before marriage, upon the publication of bans; 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 bans 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 separate wife, or turn her out of doors; or if, continuing in adultery with her, he should by severe treatment endanger her life; the commissioners will authorize a separation *à 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 maritis*; 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 fulfill, 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 maritis*, 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 *prepotent negotis*, 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 fulfillings 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 the remains in family with her husband, is considered as preposita negotis domésticis, and consequently may provide things proper for the family; for the price whereof the husband is liable, though they should be misapplied, or though the husband should have given her money to provide them elsewhere. A husband who supposes 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 fulfillings 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 estate, she has no moveable estate, except her paraphernalia; and these may alien or impignorate, with consent of her 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, authorize 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 a yearly alimony, are effectual as to the time paid, but revocable either by the husband or wife.

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

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

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 entitled 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 entitled 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. cxxx. 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 defection, are grounds which must necessarily dissolve marriage; they are only handles, which the injured party may take hold of to be free. Cohabitation, therefore, by the injured party, after being in the knowledge of the acts of adultery, implies a passing from the injury; and no divorce can proceed, which is carried on by collusion betwixt Law of Scotland.

twixt 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 between 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 survival. This was also esteemed the rule in divorces upon adultery. But by a decision of the court of session 1662, founded on a tract of ancient decisions recovered from the records, the offending husband was allowed to retain the tocher.

Sect. VII. Of Minors, and their Tutors and Curators.

1. The stages of life principally distinguished in law are, pupillarity, puberty or minority, and majority. A child is under pupillarity, from the birth 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. Tutorship 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 a place for a tutor of law. This sort of tutorship devolves upon the next agnate; by which we understand he who is nearest related by the father, though females intervene.

4. Where there are two or more agnates equally near to the pupil, he who is entitled 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 tutor dative. But because a tutor in law ought to be allowed a competent time to deliberate whether he will serve or not, no tutor 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 judicial of any kinman, 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 foris-familiated. 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 litera, who are authorized by the judge to concur with a pupil or minor in actions of law, either where he is without tutors and curators, or where his tutors 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. Whodebar Women are capable of being tutors and curators under the following restrictions: (1.) The office of a female tutor is tutoratory. tutor or curator fails 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 *pupils* can act for himself. Hence, the tutor subscribes alone all deeds of administration: but in curatory, it is the minor who subscribes as the proper party; the curator does no more than consent. Hence also, the persons of pupils are under the power either of their tutors or of their nearest cognates; but the minor, after pupillarity, has the disposal of his own person, and may reside where he pleases. In most other particulars, the nature, the powers, and the duties of the two offices coincide. Both tutors and curators must, previous to their administration, make a judicial inventory, subscribed by them and the next of kin, before the minor 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 or 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 leases of the minor's lands, to endure longer than their own office; nor under the former rental, without either a warrant from the court of session, or some apparent necessity.

10. They have power to sell the minor's moveables; but cannot sell their pupil's land estate, without the authority of a judge: yet this restraint reaches not to such alienations as the pupil could by law be compelled to grant, e.g., to renunciations of wadsets upon redemption by the 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, authorize the minor to do any deed for their own benefit; nor can they acquire any debt affecting the minor's estate: and, where a tutor or curator makes such acquisition, in his own name, for a less sum than the right is entitled 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 meliorating 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 their obligations *munera publica*, might be forced upon every one who was named. 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 pouffle* (when in a state of health), names certain persons both as tutors and curators to his children, though they have acted as tutors, they may decline the office of curatory. Tutors and curators having once accepted, are liable in diligence, that is, are accountable for the consequences of their neglect in any part of their duty from the time of their acceptance. They are accountable *singuli in folium*, 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 infractions. (2.) Tutors and curators named by the father in consequence of the act 1666, with the special provisos, that they shall be liable barely for infractions, not for omissions; and that each of them shall be liable only for himself, and not *in folium* 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 tutor'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 minor's conduct proceeds merely from indolence or inattention, the tutor or curator, in place of removing the tutor, either join a curator with him, or, if he be a tutor nominate, they oblige him to give caution for his past and future management.

15. The offices of tutory and curatory expire also by the pupil's attaining the age of puberty, or the minor's attaining the age of 21 years complete; and by the death either of the minor, or of his tutor and curator. Curatory also expires by the marriage of a female minor, who becomes thereby under the coverture of her own husband. After expiry of the office, reciprocal actions lie at the instance both of the tutors and curators, and of the minor. That at the instance of the minor is called *actio tutelae directa*, by which he can compel pel the tutors to account; that at the instance of the tutors, actio tutela contraria, by which the minor can be compelled to repeat what has been profitably expended during the administration; but this last does not lie till after accounting to the minor; for till then the tutors are presumed intus habere to the 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 capitio minoritatis et latioris, before he be 25 years old. These four years, between the age of 21 and 25, called quadriennium utile, are indulged to the minor, that he may have a reasonable time, from that period, when he is first presumed to have the perfect use of his reason, to consider with himself what deeds done in his minority have been truly prejudicial to him.

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

19. A minor cannot be restored against his own delict or fraud; e.g., if he should induce one to bargain with him by lying he was major. (1.) 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. (2.) A minor, who has taken himself to business, as a merchant-phonkeeper, &c., cannot be restored against any deed granted by him in the course of that business, especially if he was proximus majoritatis at signing the deed. (3.) 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 quadriennium utile after the minor's death, and if he succeeds to a major dying within the quadriennium, no more of it can be profitable to him than what remained when the ancestor died.

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

22. This privilege is intended merely to save minors from the necessity of disputing upon questions of preference. It does not therefore take place, (1.) Where the action is pursued on the father's 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 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 law 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 judgement, or unfitness of disposition, is incapable of rightly managing his own affairs. Of the first fort, are idiots and furious persons. Idiots, or fatui, are entirely deprived of the faculty of reason. The temper 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 judgement, where it appears that they cannot exert it in the management of business. Every person, who is come of age, and is capable of acting rationally, has a natural right to conduct his own affairs. The only regular way, therefore, of appointing this fort of curators, is by a jury summoned upon a brief from the chancery; which is not, like the brief of common tutory, directed to any judge ordinary, but to the judge of the special territory where the person alleged to be fatuous or furious resides; that, if he is truly of sound judgement, he may have an opportunity to oppose it; and for this reason, he ought to be made a party to the brief. The curatory of idiots and furious persons belongs to the nearest agnate; but a father is preferred to the curatory of his fatuous son, and the husband to that of his fatuous wife, before the agnate.

24. A clause is inserted in the brief, for inquiring how long the fatuous or furious person has been in that condition; and the verdict to be pronounced by the inquest has a retrospective effect: for it is declared a sufficient ground, without further evidence, for reducing all deeds granted after the period at which it appeared by the proof that the fatuity or 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 the 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 curacy is imposed.—Hence the curator of law to an idiot serving quandoconque, is preferred, as soon as he offers himself, before the curator-dative. This sort of curacy does not determine by the lucid intervals of the person sub cura; but it expires by his death, or perfect return to a sound judgement; which last ought regularly to be declared by the sentence of a judge.

26. Persons, let them be ever so profuse, or liable to be imposed upon, if they have the exercise of reason, can effectually oblige themselves, till they are fettered by law. This may be done by Interdictio, 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 interdictio 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 interdictio, however, necessary the restraint might have been, voluntary interdictio 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 interdictio stands good. Voluntary interdictio, though it be imposed by the sole act of the person interdicted, cannot be recalled at his pleasure; but it may be taken off, (1.) By a sentence of the court of session, declaring, either that there was from the beginning no sufficient ground for the restraint; or that the party is, since the date of the bond, become rei sui providae. (2.) It fails, 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 interdictio requires a certain number as a quorum, the restraint ceases, if the interdictors shall by death be reduced to a lesser number.

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

29. An interdictio need not be served against the person interdicted; but it must be executed, or published by a messenger, at the market cross of the jurisdiction where he resides, by publicly reading the interdictio there, after three o'Clock made for convoking the lieges. A copy of this execution must be affixed to the cross; and thereafter, the interdictio, with its execution, must (by the act 1581) by 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 interdictio, before it is registered, has no effect against third parties, though they should be in the private knowledge of it; but it operates against the interdictors themselves, as soon as it is delivered to them.

30. An interdictio, 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 interdictio is recorded in the register of a particular thirle, it covers no lands except those situated in that thirle. 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 interdictio, may use all execution against their debtor's person and moveable estate: such bonds being only subject to reduction in so far as diligence against the heritable estate may proceed upon them.

31. All onerous or rational deeds granted by the person interdicted, are as effectual, even without the consent of the 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 Office of part of the duty of interdictors to receive sums or make interdicts. They are given merely ad auctortatem praefandam, to interpose their authority to reasonable deeds: and so are accountable for nothing but their fraud or fault, in conferring 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 forisfamilianated, in so far as it concerns that stock; for the profits arising from it are his own. Forisfamilianation, when taken in this sense, is also inferred. red by the child's marriage, or by his living in a separate house, with his father's permission or good will. Children, after their full age of twenty-one years, become, according to the general opinion, their own masters; and from that period are bound to the father only by the natural ties of duty, affection, and gratitude. The mutual obligations between parents and children to maintain each other, are explained afterwards, No 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 entitles the child to all the rights of lawful children. The subsequent marriage, which produces legitimation, is considered by the law to have been entered into when the child legitimated was begotten; and hence, if he be a male, he excludes, by his right of primogeniture, the sons procreated after the marriage, from the succession of the father's heritage, though the sons were lawful children from the birth. Hence, also, those children only can be thus legitimated, who are begotten of a woman whom the father might at that period have lawfully married. (2.) Bastards are legitimated by letters of legitimation from the sovereign. No clxxxii. 3.

34. As to the power of masters over their servants: 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, fitters, and other persons necessary to colliers 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 let 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 fitters, are declared to be upon the same footing with other servants or labourers. The act subjects those who are 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 the 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 workhouses are ordained to be built for fetting 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 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.

1. The right of enjoying and disposing of a subject at Property. One's pleasure, is called property. Proprietors are restrained by law from using their property emolliently 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.; capable of none of which can be brought under the power of any 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, churchyards, &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; acquiring but preclusion being also a way of losing property, 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. 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 their 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 elechats.

5. In that sort of moveables which never had an owner, as wild beasts, fishes, pearls found on the shore, the original law takes place, that he who first apprehends, becomes proprietor; insomuch, 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 entitling him to kill game, could hunt upon another'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 became the property of the first occupant, yet there are others which fall not under this rule. Thus, whales thrown in or killed on our coasts, belong neither to those who kill them, nor to the proprietor of the grounds on which they are cast; but to the king, providing they are so large as that they cannot be drawn by a wane with six oxen.

6. Accession is that way of acquiring property, by which, in two things which have a connexion with, or dependence on, one another, the property of the principal thing draws after it the property of its accession. 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 inflexible 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 *avulso*, they considered the owner's right of property still to subsist, § 21. Inst. de rer. div. § 21; 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; by which is meant, a person's making a new species or subject, from materials belonging to another. Where Specification 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 accession 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 workmanlike draws after it the property of the materials. But the person who thus carries the property from the other is bound to 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 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 hogsheads of wine, the whole likewise becomes a common property; but, in the after division, regard ought to be had to the different quality of the wines; if the things so mixed admit of a separation, e.g. two flocks of sheep, the property continues distinct.

9. Property is carried from one to another by Tradition; which is the delivery of possession by the proprietor, with an intention to transfer the property to the receiver. Two things are therefore requisite, in order to the transmitting of property in this way:

1. The intention or consent of the former owner to transfer it on some proper title of alienation, as sale, exchange, gift, &c. (2.) The actual delivery in pursuance of that intention. The first is called the *causa*, the other the *modus transferendi dominii*: which last is 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, transferantur 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 natural, is, when one possesses by himself; thus, we possess lands by cultivating them and reaping their fruits, houses by inhabiting them, moveables by detaining them in our hands. Civil possession is our holding the thing, either by the sole act of the mind, or by the hands of another who who holds it in our name: thus, the owner of a thing lent possesse by the borrower; the proprietor of lands, by his tackman, trustee, or steward, &c. The same subject cannot be possessed entirely, or in solidum, 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 possession is not suffered to re-enter. Yet two persons may, in the judgement of law, possess the same subject, at the same time, on different rights: thus, in the case of a pledge, the creditor possesses it in his own name, in virtue of the right of impignoration; while the proprietor is considered as possessing, in and through the creditor, in so far as is necessary for supporting his right of property. The same doctrine holds in liencrants, tackmen, and, generally, in every case where there are rights affecting a subject distinct from the property.

12. A bona fide possessor is he who, though he is not really proprietor of the subject, yet believes himself proprietor on probable grounds. A mala fide possessor 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 consumption, secures the possessor: nay, if he has sown the ground, while his bona fides continued, he is entitled to reap the crop, propter curam et culturam. But this doctrine does not reach to civil fruits, e.g. the interest of money, which the bona fide receiver must restore, together with the principal, to the owner.

13. Bona fides necessarily cease by the confidenciae rei alienae in the possessor, whether such confidences 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 the 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, though for a century of years together, if there is no seisin, does not create even a presumptive right to it: Nulla seisin, nulla terra. Such subject is considered as caducary, and so accrues to the sovereign. Where the property of a subject is contested, the lawful possessor is entitled 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 prefer 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.

1. 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 intro-

Law of Scotland. ing 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 the nature both of heritable and moveable. Personal bonds are, by the above cited act 1661, moveable in respect of succession; but heritable as to the ilk, and the rights of husband and wife. All bonds, whether merely personal, or even heritable, on which no feisin has followed, may be affected at the suit of creditors, either by adjudication, which is a diligence proper to heritage, or by arrestment, which is peculiar to moveables. Bonds excluding executors, though they descend to the creditor's heir, are payable by the debtor's executors, without relief against the heir; since the debtor's succession cannot be affected by the determination of the creditor.

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

I. HERITABLE RIGHTS.

Sect. III. Of the Constitution of Heritable Rights by Charter and Feisin.

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

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

3. This military grant got the name, first of *beneficium*, and afterwards of *feudum*; and was defined a gratuitous right to the property of lands, made under the conditions of fealty and military service, to be performed to the granter by the receiver; the radical right of the lands still remaining in the granter. Under lands, in this definition, are comprehended all rights or subjects so connected with land, that they are deemed a part thereof; as houses, mills, fisheries, jurisdictions, patronages, &c. Though feus in their original nature were gratuitous, they soon became the subject of commerce; services of a civil or religious kind were frequently substituted in place of military; and now, of a long time, services of every kind have been entirely dispensed with in certain feudal tenures. He who makes the grant is called the *superior*, and he who receives it superior the *vassal*. The subject of the grant is commonly called and vassals, ed the *feu*; though that word is at other times, in our law, used to signify one particular tenure. (See Sect. iv. 2.) The interest retained by the superior in the feu is styled *dominium directum*, or the superiority; and the interest acquired by the vassal, *dominium utile*, or the property. The word *feu* is promiscuously applied to both.

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

5. Every person who is in the right of an immovable subject, provided he has the free administration of the estate 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 sublet his property to a subvassal by a subalterner right, and thereby raise a new *dominium directum* in himself, subordinate to that which is in his superior; and so *in infinitum*. The vassal who thus subfeus is called the subvassal's immediate superior, and the vassal's superior is the subvassal's immediate superior.

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

7. Every heritable subject capable of commerce, what subjects can be granted in feu. From this general rule are exceptions accepted, 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. 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, _infefture_, is constituted by charter and feifin. By the charter, we understand that writing which contains the grant of the feudal subject to the vassal, whether it be executed in the proper form of a charter, or of a disposition. Charters by subject superiors are granted, either, 1. _A me de superiori meo_, when they are to be holden, not of the granter himself, but of his superior. This fort 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 fee is first granted: A charter by progres is a renewed disposition of that fee to the heir or assignee of the vassal. All doubtful clauses in charters by progres ought to be construed agreeably to the original grant; and all clauses in the original charter are understood to be implied in the charters by progres, if there be no express alteration.

9. The first clause in an original charter, which follows immediately after the name and designation of the granter, is the narrative or recital, which expresses the causes inductive of the grant. If the grant be made for a valuable consideration, it is said to be _onerous_; if for love and favour, _gratuitous_. In the dispositive clause of a charter, the subjects made over are described either by special boundaries or march stones, (which is called a bounding charter), or by such other characters as may sufficiently distinguish them. A charter regularly carries right to no subjects but what are contained in this clause, though they should be mentioned in some other clause of the charter. It has been however found, that a right to salmon fishing was carried by a clause _cum piscatis_ in the _tenendas_ of a charter, the same having been followed with possession.

10. The clause of _tenendas_ (from its first words _tenendas predicatas terras_) expresses the particular tenure by which the lands are to be holden. The clause of _reddendo_ (from the words _reddendo inde annuatim_) specifies the particular duty or service which the vassal is to pay or perform to the superior.

11. The clause of _warrandice_ is that by which the granter obliges himself that the right conveyed shall be effectual to the receiver. Warrandice is either personal or real. Personal warrandice, where the granter is only bound personally, is either, 1. Simple, that he shall grant no deed in prejudice of the right; and this fort, 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 land proceeds upon an _onerous_ cause, the granter is liable in absolute warrandice, though no warrandice be expressed; but in affirmations to debts or decrees, no higher warrandice than from fact and deed is implied.

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

13. Absolute warrandice, in case of eviction, affords an action to the grantee against the granter, for making up to him all that he shall have suffered through the defect of the right; and not simply for his indemnification, by the granter's repayment of the price to him. But as warrandice is penal, and consequently stricti juris, it is not easily presumed, nor is it incurred from every light servitude that may affect the subject; for lest 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 Excam-ground with another; for, if the lands exchanged are carried off from either of the parties, the law itself, without any pactum, 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 feifin_, which is the command of the superior granter of the right to his bailie, for giving feifin 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 feifin in his hands, is presumed to have a power of attorney from the vassal for receiving possession in his name.

16. A feifin is the instrument or attestation of a non-instrumentary, 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 supposable, 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 fins, rights of annualrent payable forth of land, it is also earth and stone with the addition of a penny money: for parlonage, teinds, a sheaf of corn; for juridictions, 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 feifin must be taken upon the ground of the lands, except where there is a special dispensation in the charter from the crown.

18. All feifins must be registered within 60 days after their date, either in the general register of feifins at Edinburgh, or in the register of the particular thirte appointed by the act 1617; which, it must be observ- ed, is not, in every case, the thire within which the lands lie. Burgage seifins are ordained to be registered in the books of the borough.

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

20. Seifin necessarily supposes a superior by whom it is given; the right therefore which the sovereign, who acknowledges the superior, has over the whole lands of Scotland, is constituted jure coronae without seifin. In several parcels of land that lie contiguous to one another, one seifin 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 seifin must be taken on every parcel, unless the sovereign has united them into one tenantry by a charter of union; in which case, if there is no special place expressed, a seifin 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 contiguous lands the same quality as if they had been contiguous or naturally united; union, therefore, does not take off the necessity of separate seifins, in lands holden by different tenures, or the rights of which flow from different superiors, these being incapable of natural union.

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

22. A charter, not perfected by seifin, is a right merely personal, which does not transfer the property (see No. clxxiii. 1.) and a seifin of itself bears no faith without its warrant: It is the charter and seifin joined together that constitutes the feudal right, and secures the receiver against the effect of all posterior seifins, 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 encumbrance 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.

1. 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. 52,) was that which was granted for military service. Its proper reddendo was services, or services used and wont; by which last was meant the performance of service whenever the superior's occasions required it. As all feudal rights were originally held by this tenure, ward-holding was in dubio presumed. Hence, though the reddendo bad contained some special service or yearly duty, the holding was presumed ward, if another holding was not particularly expressed.

2. Feu-holding is that whereby the vassal is obliged to pay to the superior a yearly rent in money or grain, and sometimes also in services proper to a farm, as ploughing, reaping, carriages for the superior's use, &c., nomine feudi firmæ. 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 arbitrary yearly duty, as a penny money, a roe, a pair of gilt spurs, &c., merely in acknowledgment of the superiority, nomine alba firmæ. This duty, where it is a thing of yearly growth, if it be not demanded within the year, cannot be exacted thereafter; and where the words si petatur tantum are subjoined to the reddendo, they imply a release to the vassal, whatever the quality of the duty may be, if it is not asked within the year.

4. Burgage-holding is that, by which boroughs-royal hold of the sovereign the lands which are contained in their charters of erection. This, in the opinion of Craig, does not constitute a separate tenure, but is a species of ward-holding; with this speciality, that the vassal is not a private person, but a community: and indeed, watching and warding, which is the usual service contained in the reddendo of such charters, might be properly enough said, some centuries ago, to have been of the military kind. As the royal borough is the king's vassal, all burgage-holders hold immediately of the crown: the magistrates, therefore, when they receive the resignations of the particular burgesses, and give seifin to them, act, not as superiors, but as the king's bailies specially authorized 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 mortuum; either because all casualties must necessarily be lost to the superior, where the vassal is a corporation, which never dies; or because the property of these subjects is granted to a dead hand, which cannot transfer it to another. In lands mortified in times of Popery to the church, whether granted to prelates for the behoof of the church, or in puram eleemosynam; the only services prestable by the vassals were prayers, and finging 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. dieg. ii. § 21.

Sect. V. Of the Casualties due to the Superior.

1. 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 that tenure subsists, were ward, recognition, and marriage, which it is now unnecessary to explain, as by the late statutes 20 and 25 Geo. II. for abolishing ward-holdings, the tenure of the lands holden ward of the crown or prince is turned into blanch, for payment of one penny Scots yearly, si petatur tantum; and the tenure of those holden of subjects into feu, for payment of such yearly feu duty in money, victual, or cattle, in place of all services, as should be fixed by the court of session. And accordingly that court, by act of 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 falling to the superior, will be found in Ertikine's large Institute, B. 2. t. 5. § 5. et sequens; to which the reader is referred.

4. The only casualty, or rather forfeiture, proper to feu-holding, is the loss or trefail 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, different ofcheat, defamation, and purprelure. Non-entry is that casualty which arises to the superior out of the rent of the feudal subject, through the heir neglecting to renew the investiture after his ancestor's death. The superior is entitled to this casualty, not only where the heir has not obtained himself invest, 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 paragraph;) 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 of time, by the improvement of agriculture, and perhaps also by the heightening of the nominal value of our money, from the reign of Robert I. downwards to that of James III. much too low a standard for the superior's casualties; wherefore, in all services of heirs, the inquest came at last to take proof likewise of the present value of the lands contained in the brief (quantum nunc valent), in order to fix these casualties. The first was called the old, and the other the new, extent. Old and though both extents were ordained to be specified in new all retours made to the chancery upon briefes of intent; 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 entitled to the yearly feu duty, though the fee had been full, i.e. though there had been a valid invest in the lands. The superior of teinds gets the fifth part of the retoured duty as non-entry, because the law considers teinds to be worth a fifth part of the rent. In rights of annualrent which are holden of the-granter, the annualrenter becomes his debtor's vassal; and the annualrent contained in the right is retoured to the blanch or other duty contained in the right before declarator.

8. It is because the retoured duty is the presumed rent, that the non-entry is governed by it. If therefore no retour of the lands in non-entry can be produced, nor any evidence brought of the retoured duty, the superior is entitled 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 toured 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, entitles 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 duty 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 curtesy during the life of her 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 entitles the superior to an acknowledgment or consideration from the heir for receiving him as vassal. It is called relief, because, by the entry of the heir, his fee is relieved out of the hands of the superior. It is not due in feu-holdings flowing from subjects, unless where it is expressed in the charter by a special clause for doubling the 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 poinding of the ground, as a debitum fundi, or by a personal action against the heir. In blanch and feu-holdings, where this casualty is expressly stipulated, a year's blanch or feu duty is due in name of relief, beside the current year's duty payable in name of blanch or feu form.

12. ESCHET (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 decree, or by registration of the ground of debt, which to the special effect of execution, is in law accounted a decree: the creditor may obtain letters of horning, issuing from the signet, commanding messengers to charge the debtor to pay or perform his obligation, within a day certain. Where horning proceeds on a formal decree of the seffion, 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 oyesies at the market crofs 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 crofs; 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 crofs of Edinburgh, and pier and thore of Leith.

15. Denunciation, if registered within 15 days, either in the sheriff's books, or in the general register thereof, 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 fandi 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 affigee.

16. Persons cited to the court of judicary may be 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, defornement, breach of attestation, and usury. By the late act abolishing ward-holdings, the casualties both of single and liferent escheat are discharged, when proceeding upon denunciation for civil debts; but they still continue, when they arise from criminal causes. All moveables belonging to the rebel at the time of his rebellion, (whether proceeding upon denunciation, or sentence in a criminal trial), and all that shall be afterwards acquired by him until relaxation, fall under single escheat. Bonds bearing interest, because they continue heritable quoad fiscum, fall not under it, nor such fruits of heritable subjects as became due after the term next ensuing the rebellion, these being reserved for the liferent escheat.

17. The king never retains the right of escheat to himself, but makes it over to a donatory, whose gift is not perfected till, upon an action of general declarator, it is 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 Chap. II.

Law of Scotland.

19. The rebel, if he continues unreleased for year and day after rebellion, is construed to be civilly dead; and therefore, where he holds any feudal right, his superiors, as being without a vassal, are entitled, each of them, to the rents of such of the lands belonging to the rebel as 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 retroactive effect, 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 grantor's rebellion.

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

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

24. All grants from the crown, whether charters, gifts of casualties, or others, proceed on signatures which pass the signet. When the king reigned 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 empowered to pass; and these powers are transferred to the court of exchequer, which was established in Scotland after the union of the two kingdoms in 1707. Grants of higher consequence, as remission of crimes, gifts proceeding upon forfeiture, and charters of novodamus, must have the king's sign manual for their warrant.

25. If lands holding of the crown were to be conveyed, the charter passed, before the union of the kingdoms in 1707, by the great seal of Scotland; and now by a seal substituted in place thereof. Grants of church dignities, during Episcopacy, passed also by the great seal; and the commissions to fill the principal offices of the crown, as justice clerk, king's advocate, solicitor, &c., do so at this day. All rights which subjects may transmit by simple assignation, the king transmits by the privy seal; as gifts of moveables, or of casualties that require no seisin. The quarter seal, otherwise called the testimonial of the great seal, is appended to gifts of tuitory, 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 their use, to rights derived from subjects, and give them authority; they serve also as a check to gifts procured (subreptione vel obreptione) by concealing the truth, or expressing a falsehood; for, where this appears, the gift may be stopped before passing the seals, though the signature should have been signed by the king. All rights passing under the great or privy seal must be registered in the registers of the great or privy seal respective, before appending the seal.

Sect. VI. Of the Right which the Vassal acquires by getting the Feu.

1. Under the dominium utile which the vassal acquires Dominiutum by the feudal right, is comprehended the property of utile, whatever is considered as part of the lands, whether of housetops, woods, enclosures, &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 alienated, or thirded 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 thrice; which is introduced for preventing daily temptations to fraud.

2. Proprietors are prohibited to hold dove-cots, unless their yearly rent, lying within two miles thereof, extend to ten chalders of victual. A purchaser of lands, with a dove-cot, 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 Regalia 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 halfpennies of silver can be extracted from the pound of lead, by act 1424, (three halfpennies at that time was equal to about two shillings five pence of our present Scots money). These were by our ancient law annexed to the crown; but they are now dissolved from it; and every proprietor is entitled to a grant of the mines within his own lands, with the burden of delivering to the crown a tenth of what shall be brought up.

4. Salmon fishing is likewise a right understood to be reserved by the crown, if it be not expressly granted; but 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 fees, 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 flore dues, and an obligation upon him to uphold the port in good condition. In this class of things, our forefathers reckoned fortresses, or small places of strength, originally built for the defence of the county, either against foreign invasions or civil commotions; but these now pass with the lands in every charter.

6. The vassal acquires right by his grant, not only to the lands specially contained in the charter, but to those that have been poled 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 to the lands. 2. A right poled under an express indenture is preferable, ceteris paribus, to one poled only as pertinent. 3. Where neither party is infest per exprimatum, the mutual promiscuous poledition by both, of a subject as pertinent, resolves into a commonalty of the subject poled: but if one of the parties has executed all the acts of property of which the subject was capable, while the poledition of the other was confined to pasturage only, or to casting feed and divot, the first is to be deemed sole proprietor, and the other to have merely a right of servitude.

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

8. The vassal is entitled, 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 poleditors and introducers, by an action of mails and duties before the sheriff. He can also remove from his lands, tenants who have no leases; and he can grant tacks or leases to others. A tack is a contract of location, whereby the use of land, or any other immovable subject, is let to the lesee or tackman for a certain yearly rent, either in money, the fruits of the ground, or services. It ought to be reduced into writing, as it is a right concerning lands: tacks, therefore, that are given verbally, to endure for 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 lifetime.

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 entitled to any of the growing timber above ground, and far less to the minerals, coal, clay, &c. under ground, the use of which confuses the subsistence. Tacks are, like other contracts, personal rights in their own nature; and consequently ineffectual against singular successors in the lands; but, for the encouragement of agriculture, they were, by act 1449, declared effectual to the tackman for the full time of their endurance, into whose hands forever the lands might come.

10. To give a written tack the benefit of this statute, it must mention the special tack-duty payable to the proprietor, which, though small, if it be not elusory, secures the tackman; and it must be followed by poledition, 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 ith, 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 pretensions), it is fulfilled for two years as the minimum. Tacks granted to perpetuity, or with an indefinite ith, have not the benefit of the statute. Tacks of houses within borough do not fall within this act, it being customary to let these from year to year.

11. Tacks necessarily imply a delectus persona, a choice Tacks are by the fetter of a proper person for his tenant. Hence, priti juris, the conveyance of a tack which is not granted to affigees, is ineffectual without the landlord's consent. A right of tack, though it be heritable, falls under the jus mariti, because it cannot be separated from the labouring cattle and implements of tillage, which are moveable subjects. A tack, therefore, granted to a single woman, without the liberty of affiguing, falls by her marriage; because the marriage, which is a legal conveyance thereof to the husband, cannot be annulled. This implied exclusion of affigees, is, however, limited to voluntary, and does not extend to necessary, affigments; as an adjudication of a tack by the tackman's creditor: but a tack, expressly excluding affigees, cannot be carried even by adjudication. It was not a fixed point for a long time, whether a tenant could sublet without consent of the landlord; but the court of session, in a case which occurred a few years ago, denied the power of subletting in the tenant. Different tacks, because they import a higher degree of right in the tackman than tacks for a definite term, may be affigned, unless affigees be specially excluded.

12. If neither the fetter nor tackman shall properly discover their intention to have the tack dissolved at the cation term fixed for its expiration, they are underhanded, 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 poled 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 the right, they are accountable as factors.

13. In tacks of land, the fetter is commonly bound to put all the houses and office houses, necessary for the farm, in good condition at the tenant's entry; and the tenant must keep them and leave them so at his removal. But, in tacks of houses, the fetter must not only deliver to the tenant the subject set, in tenable repair at his entry, but uphold it in that repair during the whole years of the tack, unless it is otherwise covenanted between 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 devaluation 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, (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 fifteenth, personally or at his dwelling house, to remove at that term, with his family and effects. This precept must be also executed on the ground of the lands, and thereafter read in the parish church where the lands lie, after the morning service, and affixed to the most patent door thereof. Whitunday, though it be a moveable feast, is, in questions of removing, fixed to the fifteenth of May. In warnings from tenements within borough, it is sufficient that the tenant be warned forty days before the fifteenth of the tack, whether it be Whitunday or Martinmas; and in these the ceremony of chalking the door is substituted 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 forty 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 fifteenth 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 five 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 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 liberent lands, after the death of the liberentor 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 investment, unless it be such as requires no investment; as terce, &c.

20. The defender, in a removing, must (by act 1755), Violent before offering any defence which is not instantly verified, give security to pay to the fetter the violent profits, if they should be awarded against him. These are so called, because the law considers the tenant's possession after the warning as violent. They are estimated, in tenements within borough, to double the rent; and in lands, to the highest profits the pursuer could have made of them, by possessing them either by a tenant or by himself.

21. If the action of removing shall be passed from, Warning or if the landlord shall, after using warning, accept of not inflicted rent from the tenant, for any term subsequent to that of the removal, he is presumed to have changed his mind, and tacit relocation takes place. All actions of removing against the principal or original tackman, and decrees thereupon, if the order be used, which is set forth supra (17.), are, by the act of federunt 1756, declared to be effectual against the attignees to the tack or subtenants.

22. The landlord has, in security of his tack-duty, Hypothec 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 whereverof 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 was found by the court of session, 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.

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

Sect. VII. Of the Transmission of Rights, by Confirmation and Resignation.

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

2. By the first feudal rules, no superior could be compelled to receive any vassal in the lands, other than the heir expressed in the investiture; for the superior alone had the power of ascertaining to what order of heirs the fee granted by himself was to descend. But this right of refusal in the superior did not take place, (1.) In the case of creditors' appraisers or adjudicators, 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 adjudicators 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 entitles them to on a vassal's entry, i.e. a year's rent (A).

(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 entitled, 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 housetops, 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 housetops and other perishable subjects.

3. Base rights, i.e. dispositions to be holden of the dilponer, 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 clothed 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 clothed and not clothed with possession.

4. Public rights, i.e. dispositions to be holden of the grantor's superior, may be perfected either by confirmation or resignation; and therefore they generally contain both precept of feifin and procuratory of resignation. When the receiver is to complete his right in the first way, he takes feifin upon the precept; but such feifin is ineffectual without the superior's confirmation; for the disponee cannot be deemed a vassal till the superior receive him as such, or confirm the holding. By the usual style in the transmission of lands, the disposition contains an obligation and precept of infestment, both à me and de me, in the option of the disponee; upon which, if feifin is taken indefinitely, it is confirmed 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 between that period and the confirmation, to hinder the two from being conjoined, e.g. if the grantor of a public right should afterwards grant a base right to another, upon which feifin 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 Chap. II.

Law of Scotland.

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 resignatory, is liable in damages.

9. By our former decisions, one who was vested with a personal right of lands, i.e., a right not completed by seisin, effectually divested himself by disposing it to another; after which no right remained in the disposer, 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 grantor. 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 grantor even of a personal right of lands is not so divested by conveying the right to one person, but that he may effectually make it over afterwards to another; and the preference between the two does not depend on the dates of the dispositions, but on the priority of the seisins following upon them.

Sect. VIII. Of Redeemable Rights.

1. An heritable right is said to be redeemable, when it contains a right of reversion, or return, in favour of the person from whom the right flows. Reversions are either legal, which arise from the law itself, as in adjudications, which law declares to be redeemable within a certain term after their date; or conventional, which are constituted by the agreement of parties, as in wadsets, rights of annual rent, and rights in security. A wadset (from wad or pledge) is a right, by which lands, or other heritable subjects, are impugnated 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 gremio. But where the right of reversion is granted in a separate writing, it is ineffectual against the singular successor of the wadsetter, unless it be registered in the register of seisins within 60 days after the date of the seisin upon the wadset.

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

4. Reverions commonly leave the reverfer at liberty to redeem the lands quandocumque, without restriction in point of time; but a clause is added to some reverions, 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 reverfer, even after the term has expired, while the irritancy is not declared. But the reverfer, if he does not take the benefit of this indulgence within 40 years after the lapse of the term, is cut out of it by prescription.

5. If the reverfer would redeem his lands, he must use an order of redemption against the wadsetter: the first step of which is premonition (or notice given under form of instrument) to the wadsetter, to appear at the time and place appointed by the reverfer, 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 before, a renunciation duly registered re-establishes the reverfer in the full right of the lands. Where the wadset was granted to be holden of the grantor's superior, the superior must receive the reverfer, on payment of a year's rent, if he produce a disposition from the wadsetter, containing procuratory of resignation. If, at executing the wadset, the superior has granted letters of regrefs, i.e., an obligation again to enter the reverfer Letters of 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 reverions. All wadsets that remain personal rights, are extinguished by simple discharges, though they should not be recorded.

6. If the wadsetter either does not appear at the time and place appointed, or refuses the redemption money, the reverfer must confine 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 configuration, with the configuratory's receipt of the money confirmed, completes the order of redemption, stops the farther currency of interest against the reverfer, and... founds him in an action for declaring the order to be formal, and the lands to be redeemed in consequence of it.

7. After a decree of declarator is obtained, by which the lands are declared to return to the debtor, the configned 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 configned lums 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 wadsetter, in terms of the right. The wadset-sums may be heritable, notwithstanding requisition, which may be passed from the wadsetter even after the reverer has configned the redemption money in consequence thereof.

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

10. In an improper wadset, the 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 entitled 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 furious: 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 has been explained, are also redeemable rights. A right of annualrent does not carry the property of the lands; but it creates a real nexus or burden upon the property, for payment of the interest or annualrent contained in the right; and consequently the bygone interests due upon it are debita fundi. The annualrenter may therefore either insist in a real action for obtaining letters of poinding the ground, or sue the tenant in a personal action towards the payment of his past interest: and in a competition for those rents, the annualrenter's preference will not depend on his having used a poinding of the ground, for his right was completed by the seisin; the power of poinding the ground, arising from that antecedent right, is meræ 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 poinding or by a personal action against the debtor's tenants; but must demand it from the debtor himself, on his personal obligation in the bond, either by requisition, or by a charge 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 penalty, contained in the rights. If an infestment in security be granted to a creditor, he may thereupon enter into the immediate possession of the lands or annualrent for his payment. They are extinguished as rights of annualrent.

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

Sect. IX. Of Servitudes.

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

2. Conventional servitudes are constituted, either by grant, where the will of the party burdened is expressed in writing: or by prescription, where his consent is presumed from his acquiescence in the burden for 40 years. A servitude constituted by writing, or grant, is not effectual against the granter's singular successors, unless the grantee has been in the use or exercise of his right: but they are valid against the granter and his heirs even without use. In servitudes that may be acquired by prescription, 40 years exercise of the rights 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 tenements burdened with the servitude, unless his consent be adhibited; but where the servitude is acquired by prescription, the consent of the superior, whose right afforded him a good title to interrupt, is implied. A servitude by grant, though followed only by a partial possession, must be governed, as to its extent, by the tenor of the grant; but a servitude by prescription is limited by the measure or degree of the use had by him who prescribes: agreeable to the maxim, *Tantum praescriptum, quantum possesse.*

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

5. Predial servitudes are divided into rural servitudes, or of lands; and urban servitudes, or of houses. The rural servitudes of the Romans were *iter,* *actus,* *via,* *aqueductus,* *aquaeausus,* and *jus paelendi 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 stipulated out of the granter's own property, and likewise all pasturage due to them out of other lands. When a right of pasturage is given to several neighbouring proprietors, on a moor or common belonging to the granter, indefinite as to the number of cattle to be pastured, the extent of their several rights is to be proportioned according to the number that each of them can fodder in winter upon his own dominant tenement.

7. The chief servitudes of houses among the Romans were those of support, viz., *igni immittendi,* and *oneris ferendi.* The first was the right of fixing in our neighbour's wall, a joist or beam from our house; the second was that of raising 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 high-

eif 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.

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

10. The servitudes altius non tollendi, et non officiendi luminibus vel prospectui, restrain proprietors from raising their houses beyond a certain height, or from making any building whatsoever that may hurt the light or prospect of the dominant tenement. These servitudes cannot be constituted by prescription alone: for, though a proprietor should have his house ever so low, or should not have built at all upon his grounds for 40 years together, he is presumed to have for his own convenience or profit; and therefore cannot be barred from afterwards building a house on his property, or raising it to what height he pleases, unless he be tied down by his own consent.

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

12. Thrillage is that servitude, by which lands are attricted, or thrilled, 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 attricted (which are called also the *thirl* or *fucker*) the servient. Multure is the quantity of grain or meal payable to the proprietor of the mill, or to the multurer his tackman. The sequels are the small quantities given to the servants, under the name of *knaveship,* *barnack,* and *lock or goupen.* The quantities paid to the mill by the lands not attricted, are generally proportioned to the value of the labour, and are called *out-town* or *out-fucker multures;* but those paid by the thirl are ordinarily higher, and are called *in-town* or *in-fucker multures.*

13. Thrillage may be constituted by a landholder, when, in the disposition of certain lands, he attricts them to his own mill; or when in the disposition of a mill, he attricts his own lands to the mill stipulated; 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 attricted, conveys the thrillage of all the lands formerly attricted to that mill, whether they were the property of the granter, or of a third party.

14. A less formal constitution serves to attrict barony lands to the mill of the barony, than is necessary in any other thrillage; 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 attrictis multuris,* it infers an attriction of the barony lands to the mill conveyed, although they had not formerly been attricted. But if prior to the baron's conveyance: 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 afflicted 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 inoecla et illata, i.e. of all the grain brought within the third, 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 third unmanufactured, without being liable in multure. Where it is of the grana crescentia, the whole grain growing upon the third is afflicted, 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 were 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 inoecla 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 inoecla et illata, for flour or oatmeal brought into the servient tenement, unless the importer had bought it in grain, and ground it at another mill. The same grain that owes multure, as grana crescentia, to the mill in whose third it grew, if it shall be afterwards brought within a borough where the inoecla 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 afflication of a borough or village, where there is no growing grain which can be the subject of thirlage, the afflication of inoecla et illata must be necessarily undefiled.

17. Thirlage, in the general case, cannot be established by prescription alone, for its usufruct mere facultatis non proferitur; but where one has paid for 40 years together the heavy in-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 land afflicted 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 servitudes 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 moor, 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.) Confusion, when the person comes to be proprietor of the dominant and servient tenements; for res sua nominis servitutis, and the use the proprietor therefore makes of the servient tenement is not jure servitudinis, but is an act of property. (2.) By the perishing either of the dominant or servient tenement. (3.) Servitudes are lost non utendo, by the dominant tenement neglecting to use the right of 40 years; which is considered as a delinquency of it, though he who has the servient tenement should have made no interruption by doing acts contrary to the servitude.

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

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

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

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

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

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

27. The widow has no title of possession, and so cannot receive the rents in virtue of her terce, till she be served to it; and in order to this, she must obtain a brief out of the chancery, directed to the sheriff, who calls an inquest, to take proof that she was wife to the deceased, and that her husband died infest 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, entitle the wife to enter into the possession; but she can only possess with the heir pro induro, and so cannot remove tenants till the sheriff kens her to her terce, or divides the lands between her and the heir. In this division, after determining by lot or kavil, whether to begin by the sun or the shade, i.e. by the east or the west, the sheriff sets off the two first acres for the heir, and the third for the widow. Sometimes the division is executed, by giving one entire farm to the widow, and two of equal value to the heir. The widow's right is not properly constituted by this service; it was constituted before by the husband's feifin, and fixed by his death; the service only declares it, and so entitles her to the third part of the rents retro to her husband's death, preferable to any rights that may have affected the lands in the intermediate period between that and her own service. The 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. Courtefy is a liferent given by law, to the surviving husband, of all his wife's heritage in which she died infest, if there was a child of the marriage born alive. A marriage, though of the longest continuance gives no right to the courtefy, 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 courtefy while such child is alive; so that the courtefy 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 the herlief 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 courtefy. The courtefy needs no solemnity to its constitution: That right which the husband had to the rents of his wife's estate during the marriage, jure mariti, is continued with him after her death, under the name of courtefy, by an act of the law itself. As in the terce, the husband's feifin is the ground and measure of the wife's right; so in the courtefy, the wife's feifin is the foundation of the husband's; and the two rights are, in all other respects, of the same nature; if it is not that the courtefy extends to burgage holdings, and to superiorities.

30. All liferenters must use their right falsa rei subflantia: 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 cardia 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

(b) 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 relitiae, but merely inferred, that as widow she was entitled to be alimented out of the heritable estate of which her husband died possessed: So that the decision in that case cannot be 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. 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 liferenter.

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 far. 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 entitled 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 entitled 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 inheritable bond, or of a money liferent secured on land, the interests of liferenter and far (or of heir and executor, for the same rules serve to fix the interests of both) are both governed by the legal terms of land rent, without regard to the conventional.

Sect. X. Teinds.

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

2. The person employed by a cathedral church or monastery to serve the cure in any church annexed was called a vicar, because he held the church, not in his own right, but in the right or vice of his employers; and so was 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 sort was universally due, unless in the case of their infestation to laics, or of a pontifical exemption; but by the custom of almost all Christendom, the lesser teinds were not demanded where they had not been in use to be paid. By the practice of Scotland, the teinds of animals, or of things produced from animals, as lambs, wool, calves, are due though not accustomed to be paid; but roots, herbs, &c., are not titheable, unless use of payment be proved: neither are personal teinds (i.e., the tenth of what one acquires by his own industry) acknowledged by our law: yet they have been found due, when supported by 40 years possession.

4. The parson who was entitled to the teind of corns, made his right effectual, either by accepting of a certain number of teind bolls yearly from the proprietor in satisfaction of it; or, more frequently by drawing or separating upon the field his own tenth part of the corns, after they were reaped, from the flock 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 crown 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 secularized several abbeys and priories into temporal lordships; the grantees of which were called sometimes lords of erection, and sometimes titulars, as having by their grants the same title to the erected benefices that the monasteries had formerly.

6. As the crown's revenue suffered greatly by these 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 tackmen, the bishops with the inferior clergy, and the royal boroughs, for the teinds they had in the teinds that were gifted for the provision of ministers, school, 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 protection to be extracted against him for not inflicting.

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

10. There is no provision in the decrees arbitral, 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 1692, c. 30.—1693, 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 the titulars the feu duties thereof, until payment by himself to them of 1000 merks Scots for every chalder of feu vizard, 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 misapply—Teinds re- ing parochial teinds in the times of Popery, some few decemable, 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 be- neficiaries: but a power was afterwards granted to the patron, to redeem the whole teind from such benefici- aries, upon their getting a competent stipend modi- fied to them; which teind so redeemed, the patron is obliged to sell to the proprietor, at five years purchase.

14. Some teinds are more directly subject to an al- location 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 set 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 tackman, by prorogating his tack for such a number of years as they shall judge equitable. Where this likewise proves deficient, the allocation falls on the teinds heritably conveyed by the titular, unless he has warranted his grant against future augmentations; in which case, the teinds of the lands belonging in property to the titular himself must be allocated in the first place.

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

16. Ministers glebes are declared free from the pay- ment of teind. Lands cum decimis inclusis are also ex-glebes, &c., emptied from teind. But in order to exempt lands from teinds from payment of teind, it is necessary that the pro- prietor 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 ac- tion therefore for bygone teinds is only personal, against those who have intermeddled, unless where the titular titular is infest in the lands, in securitv 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 tacksmen; which differs much from inhibition of lands (explained under the next section), and is intended merely to interpell or inhibit the tacksmen 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 tacksmen or possessor shall intermeddle after the inhibition is executed, he is liable in a quittance.

19. Lands and teinds pass by different titles: a division 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.

1. The constitution and transmission of feudal rights being explained, and the burdens with which they are chargeable, it remains to be considered how these rights may be affected at the suit of creditors by legal diligence. Diligences are certain forms of law, whereby a creditor endeavours to make good his payment, either by 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 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 clxxiii. 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 relax 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 heritable, from the intimation 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 personal 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 through they had been made prior to the inhibition.

5. This diligence only strikes against the voluntary debts or deeds of the inhibited person: it does not restrain him from granting necessary deeds, i.e. such as he was obliged to grant anterior to the inhibition, since he might have been compelled to grant these before the inhibitor had acquired any right by his diligence. By this rule, a wadsetter or annualrenter might, after being inhibited, have effectually renounced his right to the 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 federunt 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, is simply so that the debt, on which it proceeds, continues per-prohibitory; final 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 capite 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, purging of arising inhibitions. Law of Scotland.

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.

clxxii.

1. Heritable rights may be carried from the debtor to the creditor, either by the diligence of appraising (now adjudication), or by a judicial scale carried on before the court of session. Appraising, or comprising, was the sentence of a sheriff, or of a messenger who was specially constituted for that purpose, by which the heritable rights belonging to the debtor were sold for payment of the debt due to the appraiser; so that appraisings 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 appraise or tax the value of the lands by an inquest (whence came the name of appraising), and to make over to the creditor lands to the value of the debt. A full history of appraisings will be found in the beginning of Mr Erskine's large Institutes 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 appraise 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 appraising is to be led against the ancestor's land; 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 (No clxx. 25.) and states the heir, fictio 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 vested by infirmity, 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 seisin), 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 either 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 acts, 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 infirmity, and a fifth part more in respect the creditor is obliged to take land for his money. The debtor must deliver to the creditor a valid right of the lands to be adjudged, or transmits thereof, renounce the possession in his favour, and ratify the decree of adjudication: and law considers the rent of the houses as precisely commensurated 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 further 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 reverberation 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 general adjudications have the same effects that appraisings had: adjudicators in possession are accountable for the surplus rents; a citation in adjudications renders the subject litigious; superiors are obliged to enter adjudicators; 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 inopiam, 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 causae, 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 causae; 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 jacentem 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 fort 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 relinquishment or precept of seisin, and refuse to divest themselves; to the end that the subject conveyed may be effectually vested in the grantee. These adjudications may be also directed against the heir of the grantor, upon a charge to enter. Here there is no place for a legal reversion; for, as the adjudication is led for completing the right of a special subject, it must carry that subject as irredeemably as if the right had been voluntarily completed.

9. All adjudications led within year and day of that one which has been made first effectual by seisin (where seisin is necessary), or exact diligence for obtaining seisin, are preferable pari passu. The year and day runs from the date of the adjudication, and not of the seisin or diligence, for obtaining it. After the days of that period, they are preferable according to their dates. All the co-adjudicators within the year are preferable pari passu, as if one adjudication had been led for all their debts. This makes the seisin or diligence on the first adjudication a common right to the 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 fort of adjudication has been lately introduced into the law of Scotland by the act of the Geo. III. for rendering the payment of the creditors of insolvent debtors more equal and expeditious. Among 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 trustee 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 behalf 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 abbrevises of adjudications; and shall have the effect to entitle the trustee for behalf 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 sedentary 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 ulsters 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 heavilly 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 infest 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 process, 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 admits 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 introductions; but it is seldom ascertained till their office expires, or till their accounting; that the court may modify a greater or smaller salary, or none, in proportion to the factor's integrity and diligence. Many cases occur, where the court of session, without sequestration, name a factor to preserve the rents from perishing; e.g. where an heir is deliberating whether to enter, where a minor is without tutors, where a succession opens to a person residing abroad; in all which cases the factor is subjected to the rules laid down in act of federunt, Feb. 13. 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 sometimes, not to the debtor, but to his estate. The court of session are empowered, at the suit of any real creditor, to try the value of a bankrupt's estate, and sell it for the payment of his debts.

13. No proceeds of sale, at the suit of a creditor, can proceed without a proof of the debtor's bankruptcy, or at least that his lands are so charged with debts that no prudent person 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 last, Ranking of cond 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 offerer at the sale. The creditors receiving payment must grant to the purchaser absolute warrantice, to the extent of the sum received by them; and the lands purchased are declared disburdened of all debts or deeds of the bankrupt or his ancestors, either on payment of the price by the purchaser to the creditors according to their preference, or on confirmation of it. By the act 1695, purchasers were bound to confirm the price in the hands of the magistrates of Edinburgh; but by § 5. of the above act, they may confirm 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 proceedings is disturbed 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 entitled to bring actions of sale of the estates belonging to their ancestors, whether bankrupt or not; the expense of which ought to fall upon the pursuer, if there is any excessiveness of the price, after payment of the creditors: but if there be no excessiveness, the creditors, who alone are gainers by the sale, ought to bear the charge of it.

16. As proceeds 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 to 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 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 this 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, Moveable 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, entitles the person vested with it to possess the subject as his own; or if he is not in possession, to demand it from the possessors: whereas the creditor in a personal right has only jus ad rem, or a right to compel the debtor to fulfil his obligation; without any right in the subject itself, which the debtor is bound to transfer to him. One cannot oblige himself, but by a present act of the will. A bare resolution, therefore, or purpose, to be obliged, is alterable at pleasure.

2. Obligations are either, (1.) Merely natural, where one person is bound to another by the law of nature, but cannot be compelled by any civil action to the performance. Thus, though deeds granted by a minor having curators, without their consent, are null, yet the minor is naturally obliged to perform such deeds; and parents are naturally obliged to provide their children in reasonable patrimonies. Natural obligations entitle 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 also be 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 statim 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 cedit) 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 grantor, 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 condizione habetur. Thus, in the case of a provision to a child, payable when he attains to the age of fourteen, if the child dies before that age, the provision falls.

4. Obligations, when considered with regard to their cause, were divided by the Romans into those arising from contract, quasi contract, delict, and quasi delict; but there are certain obligations, even full and proper ones, which cannot be derived from any of these sources, and to which Lord Stair gives the name of obediential. Such as the obligation on parents to aliment or maintain their children; which arises singly from the relation of parent and child, and may be enforced by the civil magistrate. Under parents are comprehended, the mother, grandfather, and grandmother, in their proper order. This obligation on parents extends to the providing of their issue in all the necessaries of life, and giving them suitable education. It ceases, when the children can earn a livelihood by their own industry; but the obligation on parents to maintain their indigent children, and reciprocally on children to maintain their indigent parents, is perpetual. This obligation is, on the father's death, transferred to the eldest son, the heir of the family; who, as representing the father, must aliment his younger brothers and sisters: the brothers are only entitled 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 exist: thus also, things given ob turpem causam, where the turpitude is in the receiver and not in the giver, must be restored. And on the same principle, one upon whose ground a house is built or repaired by another, is obliged, without any covenant, to restore the expense laid out upon it, in so far as it has been profitable to him.

6. A contract is the voluntary agreement of two or more persons, whereby something is to be given or performed upon one part, for a valuable consideration, either present or future, on the other part. Consent, which is implied in agreement, is excluded, (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 perit suo domino. Where the borrower neglects to restore at the time and place agreed on, the estimation of the thing lent must be made according to its price at that time and in that place; because it would have been worth so much to the lender, if the obligation had been duly performed. If there is no place nor time stipulated for, the value is to be stated according to the price that the commodity gave when and where it was demanded. In the loan of money, the value put on it by public authority, and not its intrinsic worth, is to be considered. This contract is 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. Commodate is a species of loan, gratuitous on the part of the lender, where the thing lent may be used, without either its perishing or its alienation. Hence, in this sort of loan, the property continues with the lender; the only right the borrower acquires in the subject is its use, after which he must restore the individual thing that he borrowed; consequently, if the subject perishes, it perishes to the lender, unless it has perished by the borrower's fault. What degree of fault or negligence makes either of the contracting parties liable to the other in damages, is comprehended under the following rules. Where the contract gives a mutual benefit to both parties, each contractor is bound to exhibit a middle fort 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 considers 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 disturbed by him on that subject as arose from any uncommon accident, but not those that naturally attend the use of it. Where a thing is lent gratuitously, without specifying any time of redelivery, it constitutes the contract of pricarium, which is revocable at the lender's pleasure, and, being entered into from a personal regard to the borrower, ceases by his death.

10. Depositation 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 redeemed, he is accountable even for casual misfortunes. He is entitled to a full indemnification for the losses he has sustained by the contract, and to the recovery of all sums expended by him on the subject.

11. An obligation arises without formal pactum, barely by a traveller's entering into an inn, ship, or habitation, and there depositing his goods, or putting up his horses; whereby the innkeeper, shipmaster, or stayer, is accountable, not only for his own acts and those of his servants (which is an obligation implied in the very exercise of these employments), but of the other guests or passengers; and, indeed, in every case, unless where the goods have been lost damno fatali, 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 prevalent 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 lien.

12. Sequestration, whether voluntarily consented to by the parties, or authorized by the judge, is a kind of deposition; but as to the office of sequestration, 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. Confignation of money is also a deposition. 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 configned money lies on the configner, where he ought to have made payment, and not confignation; or has configned only a part; or has chosen for confignatory, a person neither named by the parties nor of good credit. The charger, or other creditor, runs the risk, if he has charged for sums not due, or has without good reason refused payment, by which refusal the confignation became necessary. It is the office of a confignatory, to keep the money in safe custody till it be called for: if therefore he puts it out at interest, he must run the hazard of the debtor's insolvency; but for the same reason, though he should draw interest for it, he is liable in none to the configner.

13. Pledge, when opposed to wadset, is a contract, pledge, 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. Tradesmen and ship carpenters have Hypothec, 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 lection, in different cases which lately occurred before them, and founded 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 invecta 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 disbursements. 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.

1. The appellation of verbal may be applied to all obligations to the constitution of which writing is not essential, which includes both real and personal 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 inheritable subjects, though they should be only temporary; as tasks, 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 paenitentiae. 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 pactum liberatorium, may be perfected verbally; for freedom is favourable, and the purpose of such agreement is rather to dissolve than to create an obligation. Writing is also essential to bargains made under conditions 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 100l. Scots.

3. Anciently, when writing was little used, deeds were executed by the party appending his seal to them in presence of witnesses. For preventing frauds that might happen by appending seals to false deeds, the solemnities subscription also of the grantor was afterwards required, of written and, if he could not write, that of a notary. As obligations 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 frustrate such subscription, seems to require a proof, not only that the grantor used to subscribe in that way, but that de facto he had subscribed the deed in question; at least, such proof is required, if the instrumental witnesses be still alive.

4. As a further check, it was afterwards provided, that all writings carrying any inheritable 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 confirmed obligations for sums exceeding 100l. Scots, to be obligations of importance. In a divisible obligation, ex gr. for a sum of money, though exceeding 100l., the subscription of one notary is sufficient, if the creditor restricts his claim to 100l.: But in an obligation indivisible, e.g. for the performance of a fact, if it be not subscribed in terms of the statute, it is void. When notaries thus attest a deed, the attestation or docquet must specially express that the grantor gave them a mandate to sign; nor is it sufficient that this be mentioned in the body of the writing.

5. In every deed, the name of him who writes it, with his dwelling place, or other mark of distinction, must be inserted. The witnesses must both subscribe as witnesses, and their names and designations be inserted in the body of the deed. And all subscribing witnesses must know the grantor, and either see him subscribe, or hear him 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 testing clause expresses the number of pages.

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

7. A new requisite has been added to certain deeds since the Union, for the benefit of the revenue: They must be executed on stamped paper, or parchment, paying a certain duty to the crown. These duties must also 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. length in Swinton's Abridgement, *vce* Stamps, to which the reader is referred. Certain judicial deeds, such as bail bonds, bonds of cautiony, in fulpenions, &c., are exempted, 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 parag.), can be proved by the grantor's own affixation, 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. Missive letters in re mercatoria, commissions, and fitted accounts in the course of trade, and bills of exchange, though they are not holograph, are, from the favour of commerce, sustained without the ordinary solemnities.

10. A bill of exchange is an obligation in the form of a mandate, whereby the drawer or mandate defers 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 podifier, 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 interposes. For this reason, bills of exchange, though their form admits not of witnesses, yet prove their own dates, in questions either with the heir or creditors of the debtor; but this doctrine is not extended to inland bills payable to the drawer himself.

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

12. The drawer, by signing his draught, becomes obligations 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 acceptor, has recourse against the indorser, unless the bill be indorsed in these words, *without recourse*.

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

14. Bills, when indorsed, are considered as so many bags of money delivered to the onerous indorsee; which therefore carry right to the contents, free of all burdens that do not appear on the bills themselves. Hence, a receipt or discharge, by the original creditor, if granted on a separate paper, does not exempt the acceptor from second payment to the indorsee; hence, also, no ground of compensation competent to the acceptor against the original creditor can be pleaded against the indorsee: but, if the debtor shall prove, by the oath of the indorsee, either that the bill is indorsed to him for the indorser's own behoof, 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 assignation.

15. Bills must be negociated by the podifier, against the person drawn upon, within a precise time, in order to preserve recourfe 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 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 from non-acceptance or non-payment, the dishonour must be notified to the drawer or indorser, within three post offices at farthest. This strictness of negociation is confined to such bills as may be protested by the possessor upon the third day of grace; where, therefore, bills are indorsed after the days of grace are expired, the indorsee is left more at liberty, and does not lose his recourse, though he should not take a formal protest for non-payment, if, within a reasonable time, he shall give the indorser notice of the acceptor's refusing to pay. Not only does the possessor, who neglects strict negociation, lose his recourse against the drawer, where the person drawn upon becomes afterwards bankrupt; but though he should continue solvent; for he may in that case recover payment from the debtor, and so is not to be indulged in an unnecessary process against the drawer, which he has tacitly renounced by his negligence. Recourse is preserved against the drawer, though the bill should not be duly negociated, if the person drawn upon was not his debtor; for there the drawer can qualify no prejudice by the neglect of diligence, and he ought not to have drawn on one who owed him nothing.

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

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

19. So flooded the law of Scotland, in regard to bills and actions as to promissory notes, previous to the statute 12 Geo. III.; bills and By that statute, however, the law of Scotland has promissory undergone very material alterations. They are de-notes, claimed to have the same privileges, and to prescribe in five 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 indorsee, though the bill was not protested in his name, upon his producing a receipt or letter from the protesting indorser. This act was in force only for seven years after 1st 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, where they come to receive execution in Scotland, it is a general rule, that no law 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 country-softened ev 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 or his doer's, has no force; it becomes obligatory, only after it is delivered to the grantee himself, or found in the hands of a third person. As to which last, the following rules are observed. A deed found in the hands of one who is doer both for the 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; infomuch that the granter is not allowed to prove that it was granted in trust, otherwise than by a written declaration signed by the trustee, or by his oath.

22. The following deeds are effectual without delivery. (1.) Writings containing a clause dispensing without delivery; these are of the nature of revocable livery. 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, perpetuities settlements by the husband to the wife need no delivery.

(3.) Rights which are not to take effect till the grantor'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 grantor lay under an antecedent natural obligation to execute, e.g., rights granted to a cautioner for his relief. (5.) Mutual obligations, e.g., contracts for every such deed, the moment it is executed, is a common evident to all the parties 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.

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

2. Sale is a contract, by which one becomes obliged to give something to another, in consideration of a certain price in current money to be paid for it. Things consisting merely in hope, may be the subject of this contract, as the draught of a net. Commodities, where their importation or use is absolutely prohibited, cannot be the subject of sale; and even in run goods, no action lies against the vender for the 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 distance of a foreign merchant against persons resident in Scotland for payment of goods which had been smuggled, a distinction has been made betwixt the sale 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 *verfants 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, nowise 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 *particeps 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. clxxii. 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 perilizes 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 a hire is stipulated for the use of things, or for the service of perfoms. 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 several partners agree concerning the communication of losfs 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 constituted in the case of co-heirs, or of several legatees in the same subject. A copartnership may be so constituted, that one of the partners shall, either from his sole right of property in the subject, or from his superior skill, be entitled to a certain share of the profits, without being subjected to any part of the losfs; but a society, where one partner is to bear a certain proportion of losfs, without being entitled to any share of the profits, called by the Romans *societas leonina*, is justly reprobated. All the partners are entitled to shares of profit and losfs proportioned to their several stocks where it is not otherwise covenanted.

6. As partners are united, from a *delectus personae*, in a kind of brotherhood, no partner can, without a special power contained in the contract, transfer any part of his share to another. All the partners are bound in *solidum* by the obligation of any one of them, if he subscribe by the first 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 they 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 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 losses 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 shares of the deceased descend 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 flock, as long as it continues undivided, for their relief of all the engagements entered into by them on account of the adventure.

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

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

11. Mandates expire, (1.) By the revocation of the employer, though only tacit, as if he should name another mandatory for the same business. (2.) By the renunciation of the mandatory; even after he has executed a 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 claver constat, are declared (by act 1693) to continue after the death either of the grantor or grantee. Deeds which contain a clause or mandate for registration, are for the same reason made registrable after the death of either (by act 1693 and 1696.)

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

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

14. Quasi-contracts are formed without explicit consent, by one of the parties doing something which by its nature either obliges him to the other party, or the other party to him. Under this class may be reckoned tutory, &c., the entry of an heir, negotiorum gestio, in debiti soluto, communion of goods between two or more common proprietors, and mercurium jactus levando navis coufa. Negotiorum gestio forms those obligations which arise from the management of a person's affairs, in his absence, by another, without an mandate. As such manager acts without authority from the proprietor, he ought to be liable in exact diligence, unless he has from friendship interposed in affairs which admitted no delay; and he is accountable for his intromissions with interest. On the other part, he is entitled 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. Indebtis 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 equitate, 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 confulto dat quod non debet, praemitur 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 superface is only divided, without prejudice to the property. Commonalties belonging to the king, or to royal boroughs, are not divisible. Lands lying runrig, and belonging to different proprietors, may be divided, with the exception of borough and incorporated acres; the execution of which is committed to the judge ordinary, or justices of the peace.

17. The throwing of goods overboard, for lightening a ship in a storm, creates an obligation, whereby the owners of the ship and goods saved are obliged to contribute for the relief of those whose goods were thrown overboard, that so all may bear a proportional loss of the goods ejected for the common safety. In this contribution, the ship's provisions suffer no diminution. A master who has cut his mast, or parted with his anchor, to save the ship, is entitled 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 goods of the same fort which are saved shall be afterwards sold for.

18. There are certain obligations which cannot subsist by themselves, but are accretions to, or make a part of, other obligations. Of this sort are fiduciary, and the obligation to pay interest. Cautionary, or fiduciary, 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 actio mandati or of relief against him, for recovering the principal and interest paid by himself to the creditor, and for necessary damages: which action lies de jure, though the creditor should not assign to him on payment. As relief against the debtor is implied in fiduciary 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 discharged for it; except, if, 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 discharges.

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 loose the cautioner, that when he became cautioner, bond, 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... pension should be afterwards taken off. In all maritime causes, where the parties are frequently foreigners, the defender must give caution judicio sifiri et judicatum solvi; such caution 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 singulis 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 words 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 entitled to a proportional relief against the rest; in such manner, that the loss 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 (afura) 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 had been gradually reduced, till at last, by 12 Ann. stat. 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 non-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 denunciation, 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 No. clxxii. ii.

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 arrested 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 retire it cum omni obventione et causa; and is therefore liable in the interest of it, as being truly an accessory of the subject itself. It is also from the nature of the transaction, that interest is in certain cases allowed to merchants or others in name of damages.

28. Interest is due by express 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 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 the 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 presupposes 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 properties commerce cannot be the subject of obligation. (See No. clxii. 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 judgement 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 facti improbatibilis jubit damnum et interest.

30. An obligation, to which a condition is objected, either naturally or morally impossible, is in the general case null; for the parties are presumed not to have been serious. But such obligation is valid, and the condition thereof held pro non scripta, (1.) In testament: (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. Donation, 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 the donor, even after the death of the donee; but remuneration grants, not being truly donations, cannot be revoked. That special sort of donation, which is constituted verbally, is called a promissio. The Roman law entitled all donors to the beneficium competentiae, in virtue of which they might retain such part of the donation as was necessary for their own subsistence. Our law allows this benefit to fathers, with respect to the provisions granted to their children; and to grandfathers, which is a natural consequence of children's obligation to aliment their indigent parents; but to no collateral relation, not even to brothers.

32. Donations made in contemplation of death, or mortis causa, are of the nature of legacies, and like them revocable; consequently, not being effectual in the grantor's life, they cannot compete with any of his creditors; nor even with those whose debts were contracted after the donation. They are understood to be given from a personal regard to the donee, and therefore fall by his predecease. No deed, after delivery, is to be presumed a donatio mortis causa; for revocation is excluded by delivery.

33. Deeds are not presumed, in dubio, to be donations. Hence, a deed by a debtor to his creditor, if donation be not expressed, is presumed to be granted in security or satisfaction of the debt; but bonds of provision to children are, from the presumption of paternal affection, construed to be intended as an additional patrimony; yet a tocher, given to a daughter in her marriage contract, is presumed to be in satisfaction of all former bonds and debts; because marriage contracts usually contain the whole provisions in favour of the bride. One who alimented a person that is come of age, without an express pactio 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 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.

1. Obligations may be dissolved by performance, or implement, consent, compensation, novation, and confusion.

(1.) By specific performance: thus, an obligation for a sum of money is extinguished by payment. The creditor is not obliged to accept of payment by parts, unless where the sum is payable by different divisions. If a debtor in two or more separate bonds to the same creditor, made an indefinite payment, without attributing it at the time to any one of the obligations, the payment is applied, 1stly, To interest, or to sums not bearing interest; 2ndly, To the sums that are least secured, if the debtor thereby incurs no rigorous penalty. But, 3rdly, 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 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, presumitur 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 eye. This doctrine applies also to general affirmations. 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, till the lesser obligation is extinguished, and the greater diminished, as far as the course of debit and credit goes. To found compensation, 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 aquitatis, 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 suspension or reduction; unless it has been formerly pleaded, and unjustly repelled. Decrees in absence are excepted.

6. The right of retention, which bears a near resemblance to compensation, is chiefly competent, where the mutual debts, not being liquid, cannot be the ground of compensation; and it is sometimes admitted ex aquitatis in liquid debts, where compensation is excluded by statute: thus, though compensation cannot be pleaded after decree, either against a creditor or his assignee; yet, if the original creditor should become bankrupt, the debtor, even after decree, may retain against the assignee, till he gives security for satisfying the debtor's claim against the cedent. This right is frequently founded in the expense disbursed on 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 seisin, 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 hands 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 looled, 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 prefaced, and the new obligation is construed to be merely corroborative of the old; but, where the second obligation expressly bears to be in satisfaction of the first, these words must necessarily be explained into novation. Where the creditor accepts of a new debtor, in place of the former who is discharged, this method of extinction is called delegation.

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

Sect. XVII. Of Affignations.

1. Heritable rights, when they are clothed with investiture, are transmitted by disposition, which is a writing containing procuratory of resignation and receipt of seisin; but those which either require no seisin, or on which seisin has not actually followed, are transmissible by simple affignation. He who grants the affignation is called the cedent; and he who receives it, the affignee or cedentary: if the affignee conveys his right to a third person, the deed of conveyance is called a translation; and if he affigns it back to the cedent, a retrocession. Certain rights are, from the use to which they are destined, incapable of transmission, as alimentary rights: others cannot be affigned 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 affignation, 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 affigned while it subsists.

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

3. Though, regularly, intimation to the debtor is what notice is made by an instrument, taken in the hands of a notary, or a letter of horning at the affignee'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 affignee, because that is in effect a corroborating 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. Affinements of moveable subjects, though they be intimated, if they are made retenta possessione, (the cedent retaining the possession), cannot hurt the cedent's creditors; for such rights are presumed, in all questions with creditors, to be collusive, and granted in trust for the cedent himself.

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

6. After an affinement 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 affinee, who is in the right of the debt, that the affinement was gratuitous, or in trust for the cedent: either of which being proved, the oath of the cedent will affect the affinee. If the affinement be in part onerous, and in part gratuitous, the cedent's oath is good against the affinee, 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 affinee; 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 Pointings.

1. The diligences, whereby a creditor may affect his arrestment, debtor's moveable subjects, are arrestment and pointing. 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 arrestee be paid or secured. The arrestee's debtor is usually called the common debtor; because, where there are two or more competing creditors, he is debtor to all of them. The person in whose hands the diligence is used is styled the arrestee.

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

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

4. Moveable debts are the proper subject of arrestment; under which are comprehended conditional arrestable 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, wadlets, or other personal rights of lands, which are not properly debts. Certain moveable debts are not arrestable. (1.) Debts due by bill, which pass from hand to hand as bags of money. (2.) Future debts; for though inhibition extends to adquirenda as well as 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 aliment. 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 form configured after an order of redemption used, but before decree 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 thole of Leith, against a person forth 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 medio. Far less is arrestment lost, either by the death of the arrestor, 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 judgement of law are decrees, cannot be loosed but upon payment or confirmation; 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 liquidated. (3.) Where the decree is suspended, or turned into a libel; for, till the suspension be discharged, 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 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 purified, the debt due by the common debtor to the arrestor must be liquidated; for the arrestor can be no further entitled to the subject arrested than to the extent of the debt due to him by the common debtor. Where the subject arrested is a sum of money, it is, by the decree of forthcoming, directed to be paid to the pursuer towards satisfying his debt; where goods are arrested, the judge ordains them to be exposed 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 arrestor shall neglect to insist in an action of forthcoming for such a time as may be reasonably continued into a detention of his begun diligence, he loses his preference. But, as dereliction of diligence is not easily presumed, the distance of above two years, between the first arrestment and the decree of forthcoming, was found not to make such a mora as to entitle the posterior arrestor 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 affigations, an affigation by the common debtor, intimated before arrestment, is preferable to the arrestment. If the affigation is granted before arrestment, but not intimated till after it, the arrestor 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 Law of Scotland.

A debtor's goods may be pointed by one creditor, though they have been arrested before by another; for arrestment being but an imperfect diligence, leaves the right of the subject still in the debtor, and so cannot hinder any creditor from using a more perfect diligence, which has the effect of carrying the property directly to himself.

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

12. In the execution of pointing, the debtor's goods must be 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, confignment 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 usher of the diligence towards his payment: and the debtor is entitled 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 thire. 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 facti, on 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 23 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 kalender 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 liquidate grounds of debt or decrees for payment, shall be entitled 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; reserving 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 100l. or any two creditors to the amount of 150l. or any three or more creditors to the amount of 200l. 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.

1. 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 jus capitis. The acquisition of property (it should rather be, when applied to our law, the securing it against all further challenge) by the possessor's continuing his possession for the time which law has declared sufficient for that purpose: negative, is the loss or annihilation of a right, by neglecting to follow it forth, or use it, during the whole time limited by law. The doctrine of prescription, which is, by some writers, condemned as contrary to justice, has been introduced, that the claims of negligent creditors might not subsist forever, that property might be at last fixed, and forgeries discouraged, which the difficulty of detecting must have made exceeding frequent, if no length of time had limited the legal effect of writings.

2. Positive prescription was first introduced into our Positive law by 1617, c. 12. which enacts, that whoever shall have possessed his lands, annual rents, or other heritages, peaceably in virtue of infeftments, for 40 years continually after their dates, shall not thereafter be disquieted in his right by any person pretending a better title. Under heritages are comprehended every right that is fundo annexum, and capable of continual possession. Continued possession, if proved as far back as the memory of man, presumes possession upwards to the date of the infestment. The whole course of possession must by the act be founded on seisin; and consequently no part thereof on the bare right of appearance; 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 infestment as part and pertinent of another subject specially expressed, has been explained, N° clxvii. 6.

3. The act requires, that the possessor produce, as his title of prescription, a charter of the lands preceding the 40 years possession, with the seisin following on it; and where there is no charter extant, seisins, one or more, standing together for 40 years, and proceeding either on retours or precepts of clare constat. This has given rise to a reasonable distinction observed in practice, between the prescription of a singular successor, and of an heir. Singular successors must produce for their title of prescription, not only a seisin, but its warrant, as a charter, disposition, &c., either in their own person, or in that of their author; but the production, by an heir of seisins, one or more, standing together for 40 years, and proceeding on retours or precepts of clare constat, is sufficient. The heir is not obliged to produce the retours or precepts on which his seisins proceed, nor is the singular successor obliged to produce the ground of his charter: so that if the title of prescription produced be a fair deed, and a sufficient title of property, the possessor is secure by the act, which admits no ground of challenge, but falsehood. A special statute, for establishing the positive prescription in moveable rights, was not necessary: for, since a title in writing is not requisite for the acquiring of these, the negative prescription, by which all right of action for recovering their property is cut off, effectually secures the possessor.

4. The negative prescription of obligations, by the laple of 40 years, was introduced into our law long before the positive, (1469, c. 29.—1474, c. 55.) This prescription is now amplified by the foresaid act (1617), which has extended it to all actions competent upon heritable bonds, reversions, and others whatsoever; unless where the reverions are either incorporated in the body of the wadset-right, or registered in the register of reverions: And reverions so incorporated, or registered, are not only exempted from the negative prescription, but they are an effectual bar against any person from pleading the positive.

5. A shorter negative prescription is introduced by statute, in certain rights and debts. Actions of spuizie, ejecting, and others of that nature, must be purfied within three years after the commission of the fact on which the action is founded. As in spuizies and ejections, the pursuer was entitled, in odium of violence, to a proof by his own oath in liem, and to the violent profits against the defender, the statute meant only to limit these special privileges by a three years prescription, without cutting off the right of action, where the claim is restricted to simple restitution. Under the general words, and others of that nature, are comprehended all actions where the pursuer is admitted to prove his libel by his own oath in liem.

6. Servants fees, house rents, men's ordinaries, (i.e. preferment money due for board), and merchants accounts, fall under the triennial prescription, (by 1579, c. 83.) vants fees, There is also a general clause subjoined to this statute, &c. of other like debts, which includes alimentary debts, wages due to workmen, and accounts due to writers, agents, or procurators. These debts may, by this act, be proved after the three years, either by the writing or oath of the debtor; so that they prescribe only as to the mean of proof by witnesse; but after the three years it behooves the creditor to refer to the debtor's oath, not only the constitution, but the sufficiency of the debt. In the prescription of house rents, servants fees, and alimony, each term's rent, fee, or alimony, runs a separate course of prescription; so that in an action for these the claim will be restricted to the arrears incurred within the three years immediately before 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 purfied within three years after the warning. Reductions of erroneous retours prescribe, if not purfied within 20 years.

7. Ministers stipends and multures prescribe in five years after they are due; and arrears of rent, five years after the tenant's removing from the lands. As the prescription of mails and duties was introduced in favour of poor tenants, that they might not suffer by neglecting to preserve their discharges, a proprietor of lands subject to a liferent, who had obtained a lease of all the liferented lands from the liferenter, is not entitled to plead it, nor a tackman of one's whole estate, who had by the lease a power of removing tenants. Bargains concerning moveables, or sums of money which are proveable by witnesse, 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 above-mentioned debts, may, after the five years, be proved, either by the oath or the writing of the debtor; 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 Limitation 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 directory, it is firstly interpreted: Thus, bonds bearing a mutual clause of relief pro rata, fall not under it; nor bonds of corroboration, nor obligations, where the condition is not purfied, or the term of payment not come within the seven years; because no diligence... ligence can be used on these. The statute excludes all cautionries for the faithful discharge of offices; these not being obligations in a bond or contract for sums of money. And practice has denied the benefit of it to all judicial cautioners, as cautioners in a suspension.—Actions of count and reckoning, competent either to minors against their tutors or curators, or vice versa, prescribe in ten years after the majority or death of the minor.

9. Holograph bonds, missive letters, and books of account, not attested by witnesses, prescribe in 20 years, unless the creditor shall thereafter prove the verity of the subscription by the debtor's oath. It is therefore sufficient to save from the effect of this prescription, that the constitution of the debt be proved by the party's oath after the 20 years; whereas, in stipends, merchants accounts, &c., not only the constitution, but the subsistence of the debt, must be proved by writing or the debtor's oath, after the term of prescription. Some lawyers extend this prescription of holograph writings to all obligations for sums not exceeding 100l. 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, spoliation, ejectments, or arrestments, or for payment of the debts contained in act 1660, c. 9, are by the said act joined with 1655, 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 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 five 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 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 fide, presumpitio juris et de jure. In the long negative prescription, bona fide 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 whole time defined by law must be completed, before a right can be either acquired or lost by it; so that interruption, made on the last day of the 40th year, breaks its course. The positive prescription runs against the sovereign himself, even as to his annexed property; but it is generally thought he cannot suffer whom it by the negative: he is secured against the negligence runs of his officers in the management of processes, by express statute, 1600, c. 14. The negative, as well as the positive prescription, runs against the church, though churchmen have but a temporary interest in their benefices. But because the rights of beneficiaries to their stipends are liable to accidents, through the frequent change of incumbents, 13 years possession does, by a rule of the Roman chancery which we have adopted, found a presumptive title in the beneficiary: but this is not properly prescription; for if by titles recovered, perhaps out of the incumbent's own hands, it shall appear that he has possessed tithes or other subjects to a greater extent than he ought, his possession will be restricted accordingly. This right must not be confounded with that established in favour of churchmen, which is confined to church lands and rents, and constitutes a proper prescription upon a possession of 30 years.

13. The clause in the act 1617, saving minors from prescription, is extended to the positive, as well as to the negative prescription; but the exception of minority is not admitted in the case of hospitals for children, where there is a continual succession of minors, that being a casus infestus. 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 precludes only from the publishing of the deed granted to the inhibitor's prejudice; and in the prescription of removings, the years are computed only from the term at which the defender is warned to remove. Neither can prescription run against persons who are already in possession, and so can gain nothing by a pursuit. Thus, where a person, who has two adjudications affecting the same lands, is in possession upon one of them, prescription cannot run against the other during such possession.

15. Certain rights are incapable of prescription: Certain (1.) Things that law has exempted from commerce, rights incapable of (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 eliding an action, cannot prescribe, unless the exception is founded on a right productive of an action, e.g. compensation; such right must be insisted on within the years of prescription. (4.) Oblig- 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 submit 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 nonquam praefertur. 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 obligations by homing, inhibition, arrestment, &c., must be effectual to interrupt prescription.

18. Interruptions, by citation upon libelled summonses, where they are not used by a minor, prescribe, if not renewed every seven years: but where the appearance of parties, or any judicial act has followed thereupon, it is no longer a bare citation, but an action which subsists for 40 years. It has been found, that the sexennial prescription of bills is not interrupted by a blank citation, as practised in the court of admiralty. Citations for interrupting the prescription of real rights must be given by messengers; and the summonses, on which such citations proceed, must pass the signet upon the bill, and be registered within 60 days after the execution, in a particular register appointed for that purpose: and where interruption of real rights is made via facti, an instrument must be taken upon it, and recorded in the said register; otherwise it can have no effect against singular successors.

19. Interruption has the effect to cut off the course of prescription, so that the person prescribing can avail himself of no part of the former time, but must begin a new course, commencing from the date of the interruption. Minority, therefore, is no proper interruption: for it neither breaks the course of prescription, nor is it a document or evidence taken by the minor on his right: it is a personal privilege competent to him, by which the operation of the prescription is interrupted 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.

1. Singular successors are those who succeed to a successor 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 defends to those named by the proprietor himself; or legal, which involves upon the persons whom the law marks out for successors, from a presumption, that the proprietor would have named them had he made a definition. The first is in all cases preferred to the other, as presumption must yield to truth.

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 defends to females; the immediate younger brother of the deceased excludes the rest, according to the rule, heritage defends. 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 grandfather; 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; inasmuch 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 capite, where the division is made into as many equal parts as there are copia or heirs, which is the case of heirs portioners; and succession in stirpe, where the remoter heirs draw no more among them than the share belonging to their ascendants or stirps, whom they represent; an example of which may be figured in the case of one who leaves behind him a daughter alive, and two grand-daughters by a daughter deceased. In which case the two grand-daughters would succeed equally to that half which would have belonged to their mother had she been alive.

5. In the succession of heirs portioners, indivisible rights, e.g., titles of dignity, fall to the eldest sister. A single right of superiority goes also to the eldest; for it hardly admits a division, and the condition of the vassal ought not to be made worse by multiplying superiors upon him. Where there are more such rights, the eldest may perhaps have her election of the best; but the younger sisters are entitled to a recompense, in so far as the divisions are unequal; at least, where the superintendents 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 perquisites of these lands. A precipitium, however, is due only in the case of succession of heirs portioners ab intestato; and therefore there is no place for it where the succession is taken under a deed.

6. Tho' heritable rights, to which the deceased did himself succeed as heir to his father or other ancestor, yet sometimes the name of heritage in a strict sense, in opposition to the feuda nova, or feus of conquest, which he had acquired by singular titles, and which descend not to his heir of line, but of conquest. This distinction obtains only where two or more brothers or uncles, or their issue, are next in succession; in which case, the immediate younger brother, as heir of line, succeeds to the proper heritage, because that descends; whereas the conquest ascends to the immediate elder brother. It has no place in female succession, which the law divides equally among the heirs portioners. Where the deceased was the younger brother, the immediate elder brother is heir both of line and of conquest. An estate disposed by a father to his eldest son, is not conquest in the son's person, but heritage; because the son would have succeeded to it, though there had been no disposition. The heir of conquest succeeds to all rights affecting land, which require seisin to perfect them. But teinds go to the heir of line; because they are merely a burden on the fruits, not the land. Tacks do not fall under conquest, because they are complete rights without seisin; nor personal bonds taken to heirs excluding executors.

7. The heir of line is entitled to the succession, not heirship 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 a house and estate to succeed to, quite disannulled by the executor. In that fort which goes by pairs or dozens, the best pair or dozen is the heirship. There is no heirship in fungibles, or things estimated by quantity; as grain, hay, current money, &c. To entitle an heir to this privilege, the deceased must have been either, (1.) A prelate; (2.) A baron, i.e., who stood infest at his death in lands, though not erected into a barony; or even in a right of annual rent: Or, (3.) A burgess; not an honorary one, but a trading burgess of a royal borough, or at least one entitled to enter burgess in the right of his ancestor. Neither the heir of conquest, nor of tailzie, has right to heirship moveables.

8. As to succession by delimitation, no proprietor can settle any heritable estate, in the proper form of a testament; nor even bonds excluding executors, though 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, though a disposition settling heritage should have neither precept nor procuratory, it founds an action against the heir of line to complete his titles to the estate; and thereafter divest himself in favour of the dispence. 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 delimitations. (2.) Tailzies with prohibitory clauses. (3.) Tailzies with prohibitory, resolutive, and irritant clauses. That is a simple delimitation, 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 delimitation 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. by the debt, or deed, of any of the heirs succeeding thereto, in prejudice of the substitutes. It was long doubted, whether such tailizes ought to be effectual, even where the superior's consent was adhibited; because they sunk the property of estates, and created a perpetuity of inferents. 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 tailizes 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 infritor who accepts of it. It has been found, that an entail, though completed by infestment before the act 1685, was ineffectual, because not recorded in terms of the act.

12. An heir of entail has full power over the entailed estate, except in so far as he is expressly fettered; and as entails are an unfavourable restraint upon property, and a frequent snare to trading people, they are strictissimi juris; so that no prohibition or irritancies are to be inferred by implication. By 10 George III. c. 51, heirs of entail are entitled (notwithstanding any restrictions in the deed of entail) to improve their estates by granting leases, building farm houses, draining, enclosing, and exchanging, under certain limitations, and to claim repayment of three-fourths of the expense from the next heir of entail.—This act extends to all tailizes, whether made prior or posterior to the 1685.

13. An heir, who contravenes the directions of the tailzie, by aliening any part of the estate, charging it with debt, &c. is said to contravene. It is not the simple contracting of debt that infers contravention; the lands entailed must be actually adjudged upon the debt contracted. An heir may, where he is not expressly barred, settle rational provisions on his wife and children, without incurring contravention. It is not quite clear whether the heirs also of the contravenor would forfeit their right from the acts or deeds of their predecessor where there is no express clause in the entailed 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 contravenor 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 tailizes, declaring, that the contravention of the heir in possession shall not affect his defendants, when such is the intention of the grantor.

14. When the heirs of the last person specially called in a tailzie come to succeed, the irritancies have no longer any person in favour of whom they can operate, and consequently, the fee, which was before tailzie, becomes simple and unlimited in the person of such heirs. By the late act 20th George II. for abolishing wardholdings, the king may purchase lands within Scotland, notwithstanding the strictest entail; and where the lands are in the hands of minors or fatuous persons, his majesty may purchase them from the curators or guardians. And heirs of entail may sell to their vassals the superiorities belonging to the entailed estate; but in all these cases, the price is to be settled in the same manner that the lands or superiorities sold were settled before the sale.

15. Rights, not only of land estates, but of bonds, are sometimes granted to two or more persons in conjunct fee. Where a right is so granted to two strangers, without any special clause adjected 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 fairs are affectable by their creditors during their lives; but, on the death of any one of them, the survivor has the fee of the whole, in so far as the share of the predeceased remains free, after payment of his debts. Where the right is taken to the two in conjunct fee, and to the heirs of one of them, he to whose heirs the right is taken is the only heir; the right of the other resolves into a simple 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 per 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 movables 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 infestment, 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 one's 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, withstanding 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 far, 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 families; so that the whole must indeed go to one or other of them; but the father has a power inherent in him, to divide it among them in such proportions as he thinks best, yet so as none of them may be entirely excluded, except in extraordinary cases.

20. A clause of return is that, by which a sum in a bond or other right, is in a certain event limited to return to the grantor himself, or his heirs. When a right is granted for onerous causes, the creditor may defeat the clause of return, even gratuitously. But, where the sum in the right flows from the grantor, or where there is any other reasonable cause for the provision of return in his favour, the receiver cannot disappoint it gratuitously. Yet since he is far, the sum may be either assigned by him for an onerous cause, or affected by his creditors.

21. An heir is, in the judgement 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 an heir active; in the second, passive. From this general rule are excepted, heirs substituted in a special bond, and even substituted in a disposition omnium bonorum, to take effect at the grantor's death; for such substitutes are considered as singular successors, and their right as an universal legacy, which does not subject the legatee ultra valorem: but heirs male or of tailzie, though their right be limited to special subjects, are liable, not merely to the extent of the subject entailed or provided, but in solidum; because such rights are designed to carry a 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 purfused; 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 tailzie; 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 creditors 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 fulschorarie, 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 Apparent apparenly 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 herandis 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 briefes from the chancery, which are called briefes of inquest, and have been heirs, long known in Scotland. The judge, to whom the brief is directed, is required to try the matter by an inquest of fifteen sworn men. The inquest, if they find the claim verified, must declare the claimant heir to the deceased, by a verdict or service, which the judge must attell, 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. General service vests the heir in the right of all heritable subjects, which either do not require feisin, or which have not been perfected by feisin 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 if, after the same is subscribed by the sheriff or sheriff-depute, the clerk, and himself, and registered in the sheriff's books, the extract thereof shall be registered within forty days after expiry of the annus deliberandi in the general register appointed for that purpose, his subsequent entry will subject him no farther than to the value of such inventory. If the inventory be given up and registered within the time prescribed, the heir may serve on it, even after the year.

27. Creditors are not obliged to acquiesce in the value of the estate given up by the heir; but, if they be real creditors, may bring the estate to a public sale, in order to discover its true value; since an estate is always worth what can be got for it. An heir by inventory, as he is in effect a trustee for the creditors, must account for that value to which the estate may have been improved since the death of the ancestor, and he must communicate to all the creditors the cases he has got in transacting with any one of them.

28. Practice has introduced an anomalous sort of entry, without the interposition of an inquest, by the sole consent of the superior; who, if he be satisfied that the person applying to him is the next heir, grants him a precept (called clare constat, from the first words of its recital), commanding his bailie to seisin him in the subjects that belonged to his ancestor. The heir, by taking seisin on this precept, becomes passivo, 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 half 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, seisins him in the subject, by the symbol of the half and staple of the door. Charges given by creditors to apparent heirs to enter, stand in the place of an actual entry, so as to support the creditor's diligence (clxxii. 2.)

29. A general service cannot include a special one; since it has no relation to any special subject, and carries only that class of rights on which seisin has not proceeded: but a special service implies a general one of the same kind or character, and consequently carries even such rights as have not been perfected by seisin. Service is not required to establish the heir's right in titles of honour, or offices of the highest dignity; for these descend jure sanguinis.

30. An heir, by immixing with his ancestor's estate passive without entry, subjects himself to his debts, as if he had titles entered; or, in our law phrase, incurs a passive title. The only passive title by which an apparent heir becomes liable universally for all his ancestor's debts, is gestio pro haerede, or his behaving as none but an heir has right to do. Behaviour as heir is inferred from the gestio pro 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 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 polleffing 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 briefes 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 adjudgedable, 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 hereditatis, 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 granter, 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 intromission taken upon it, and he is therefore called sucefor titulo lucrativo post contractum debitum.

35. Neither 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: Gesto 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 litigiously contested while the delinquent himself was alive; whereas the successor titulo lucrativo is by the acceptance of the disposition understood to have entered into a tacit contract with the grantor's creditors, by which he undertakes the burden of their debts; and all actions founded on contract are transmissible against heirs.

36. An apparent heir, who is cited by the ancestor's creditor in a process for payment, if he offers any peremptory defence against the debt, incurs a passive title; for he can have no interest to object against it, but in the character of heir. In the same manner, the heir's not renouncing upon a charge to enter heir, infers it: But the effect of both these is limited to the special debt pursued for, or charged upon. This passive title, which is inferred from the heir's not renouncing, has no effect till decree pass against him; and even a renunciation offered after decree, if the decree be in absence, will entitle the heir to a suspension of all diligence against his person and estate, competent upon his ancestor's debts.

37. By the principles of the feudal law, an heir, when he is to complete his titles by special service, must necessarily pass over his immediate ancestor, e.g., his father, if he was not infant; and serve heir to that ancestor who was last vested and seized in the right, and in whose hereditatis jacens the right must remain, till a title be connected thereto from him. As this bore hard upon creditors who might think themselves secure in contracting with a person whom they knew 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 correcory of the feudal maxim, has been strictly interpreted, so as not to extend to the gratuitous deeds of the person interjected, nor to the case where the interjected person was a naked fiar, and possessed only civilly through the liberator.

38. Our law, from its jealousy of the weakness of mankind while under sickness, and of the opportunity of friends on that occasion, has declared that all deeds affecting heritage, if they be granted by a person on deathbed, (i.e., after contracting that sickness which ends in death), to the damage of the heir, are ineffectual, except where the debts of the grantor have laid him under a necessity to alien his lands. As this law of deathbed is founded solely in the privilege of the heir, deathbed deeds, when consented to by the heir, are not reducible. The term properly opposed to deathbed is liege 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 conickness immediately before signing, and of his death follows a following it, though at the greatest distance of time, deathbed 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 market place at the time of public market. No other proof of convalescence is receivable, because at kirk and market there are always present unsuspected witnesses, which we can hardly be sure of in any other case.

40. The privilege of setting aside deeds ex capite To what lech, 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 lech to his hurt; for no private renunciation can authorize 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 What rights of every subject to which the heir would have succeeded, may be thus ed, 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 pouffie, 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 pouffie, 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 1651) 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 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.

1. In the succession of moveable rights, it is an universal rule, that the next in degree to the deceased (or next of kin) succeeds to the whole; and if there are two or more equally near, all of them succeed by equal parts, without that prerogative, which takes place in heritage, of the eldest son over the younger, or of males over females. Neither does the right of representation (explained No clxxx. 4.) obtain in the succession of moveables, except in the single case of a competition between the full blood and the half blood; for a niece by the full blood will be preferred before a brother by the half blood, though she is by one degree more remote from the deceased than her uncle. Where the estate of a person deceased consists partly of heritage, and partly of moveables, the heir in the heritage has no share of the moveables, if there are others as near in degree to the deceased as himself: But where the heir, in such case, finds it his interest to renounce his exclusive claim to the heritage, and betake himself to his right as one of the next of kin, he may collate or communicate the heritage with the others, who in their turn must collate the moveables with him; so that the whole is thrown into one mass, and divided equally among all of them. This doctrine holds, not only in the line of defendants, but of collaterals; for it was introduced, that the heir might in no case be worse than the other next of kin.

2. One may settle his moveable estate upon whom he pleases, excluding the legal successor, by a testament; which is a written declaration of what a person wills to be done with his moveable estate after his death. No testamentary deed is effectual till the death of the testator; who may therefore revoke it at pleasure, or make a new one, by which the first loses its force, according to the rule, voluntas testatoris est ambulatoria usque ad mortem; and hence testaments are called last or latter wills. Testaments, in their strict 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 100l. Scots, are sustained: and even where they are granted for more, they are ineffectual only as to the execs.

3. A legacy is a donation by the deceased, to be paid by the executor to the legatee. It may be granted either in the testament or in a separate writing. Legacies are not due till the grantor's death; and consequently they can transmit no right to the executors of the legatee, in the event that the grantor survives him. A case occurred some years ago, where a testator left a legacy payable when the legatee arrived at a certain age. The legatee survived the testator, 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 à morte testatoris, and upon his decease was due to the legatee's next of kin.

4. Legacies, where they are general, i.e. of a certain sum of money indefinitely, give the legatee no right in any one debt or subject; he can only insist in a personal action against the executor for payment out of the testator's effects. A special legacy, i.e. of a particular debt due to the deceased, or of a particular subject belonging to him, is of the nature of an afflication, by which the property of the special debt or subject vests, upon the testator's death, in the legatee, who can therefore directly sue the debtor or possessor: Yet as no legacy can be claimed till the debts are paid, the executor must be cited in such process, that it may be known, whether there are free effects sufficient for answering the legacy. Where there is not enough for payment of all the legacies, each of the general legatees must suffer a proportional abatement: But a special legatee gets his legacy entire, though there should be nothing over for payment of the rest; and, on the contrary, he has no claim, if the debt or subject bequeathed should perish, whatever the extent of the free executory may be.

5. Minors, after puberty, can test without their curators, wives without their husbands, and persons interdicted without their interdictors: but bastards cannot test, except in the cases afterwards set forth, No cclxxii. 3. As a certain share of the goods, falling under the communion that is consequent on marriage, belongs, upon the husband's decease, to his widow, jure relicte, and a certain share to the children, called the legitimate portion natural, or bairns part of gear; one who has a wife or children, though he be the absolute administrator of all these goods during his life, and consequently may alien them by a deed inter vivos, in liege povstie, even gratuitously, if no fraudulent intention to disappoint the wife or children shall appear, yet cannot impair their shares gratuitously on deathbed: nor can he dispose of his moveables to their prejudice by testament, though it should be made in liege povstie; 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 testified 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 relief, as well as the dead's part. His funeral charges, and the mournings and alimony due to the widow, are considered as his proper debts; but the legacies, or other gratuitous rights granted by him on deathbed, affect only the dead's part. Bonds bearing interest, due by the deceased, cannot diminish the relief'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 in legitime is strongly founded in nature, the renunciation of it is not to be inferred by implication. Renunciation by a child of his claim of legitime has the same effect as his death, in favour of the other children entitled thereto; and consequently the share of the renouncer divides among the rest; but he does not thereby lose his right to the dead's part; if he does not also renounce his share in the father's executry. Nay, his renunciation of the legitime, where he is the only younger child, has the effect to convert the whole subject thereof into dead's part, which will therefore fall to the renouncer himself as next of kin, if the heir be not willing to collate the heritage with him. 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 come entitled to the legitime, we have among adopted the Roman doctrine of collatio bonorum, whereby the child, who has got a provision from his father, is obliged to collate it with the others, and impute it towards his own share of the legitime; but if from the deed of provision, the father shall appear to have intended it as a praecipuum to the child, collation is excluded. A child is not bound to collate an 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 entitled to the legitime, the reliefs are 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 Confirmation by entry, so an executor is not veiled 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, pollefs, and administer them, either in behalf of themselves, or of others interested therein. Testaments must be confirmed in the commissariat where the deceased had his principal dwelling house at his death. If he had no fixed residence, or died in a foreign country, the confirmation must be at Edinburgh, as the commune forum; but if he went abroad with an intention to return, the commissariat within which he resided before he left Scotland, is the only proper court.

12. Confirmation proceeds upon an edict, which is affixed on the door of the parish church where the deceased dwelt, and serves to intimate to all concerned the day of confirmation, which must be nine days at least after publishing the edict. In a competition for the office of executor, the commissary prefers, primo loco, the person named to it by the deceased himself, whose nomination he ratifies or confirms, without any previous decerniture: this is called the confirmation of a testament testamentary. In default of an executor named by the deceased, universal disponees are by the present practice preferred; after them the next of kin; then the relief; then creditors; and, lastly, special legatees. All these must be deemed executors, by a sentence called a decree dative; and if afterwards they incline to confirm, the commissary 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. Whereupon there... 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 jacentis of the moveables, upon which he may confirm as executor-creditor to the deceased. Where one is creditor, not to the deceased, but to his next of kin who stands off from confirming, he may affect the moveables of the deceased, by obtaining himself deemed executor-dative to the deceased, as if he were creditor to him, and not to his next of kin.

15. Where an executor has either omitted to give up 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 appriva, at the suit of any having interest; and if it appears that he has not omitted or undervalued any subject dolos, the commissary will ordain the subjects omitted, or the difference between the estimations in the principal testament and the true values, to be added thereto; but if dole shall be presumed, the whole subject of the testament ad omnia vel male appriva, will be carried to him who confirms it, to the exclusion of the executor in the principal testament.

16. The legitimate and relief's share, because they are rights arising ex lege, operate ipso jure, upon the father's death, in favour of the relict and children; and consequently pass from them, though they should die before confirmation, to their next of kin: whereas the dead's part, which falls to the children or other next of kin in the way of succession, remains, if they should die before confirming, in bonis of the first deceased; and so does not descend to their next of kin, but may be confirmed by the person who, at the time of confirmation, is the next of kin to the first deceased. Special assignments, 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 assignments, and so fall under this rule. The next of kin, by the bare possession of the ipsa corpora of moveables, acquires the property thereof without confirmation, and transmits it to his executors.

17. The confirmation of any one subject by the next of kin, as it proves his right of blood, has been adjudged to carry the whole executry out of the testament of the deceased, even what was omitted, and to transmit all to his own executors. The confirmation of a stranger, who is executor nominated, as it is merely a trust for the next of kin, has the effect to establish the right of the next of kin to the subjects confirmed, in the same manner as if himself had confirmed them.

18. Executry, though it carries a certain degree of representation of the deceased, is properly an office: 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 case they may pay without furnished to the deceased on deathbed, physicians fees 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 entitled 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 intrumission; which may be defined, an unwarrantable intermeddling with the moveable estate of a person deceased, without the order of law. This is not confirmed, as the passive titles in heritage are, to the persons interested in the succession, but strikes against all intro-mitters whatever. Where an executor confirmed intrumits 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 intrumission 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 matter 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 intrumission 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 intrumission, or euclodice Chap. II.

Law of causia, by the wife or children, who only continue the possession of the deceased, in order to preserve his goods for the benefit of all concerned, infers no passive title. And, upon the same principle, an intromitter, by confirming himself executor, and thereby subjecting himself to account, before action be brought against him on the passive titles, purges the vitiosity of his prior intromission; and where the intromitter is one who is interested in the succession, e.g., next of kin, his confirmation, at any time within a year from the death of the deceased, will exclude the passive title, notwithstanding a prior citation. As this passive title was intended only for the security of creditors, it cannot be sued upon by legatees; and since it arises ex delicto, it cannot be pleaded against the heir of the intromitter. As in delicts, any one of many delinquents may be subjected to the whole punishment, so any one of many intromitters may be sued in solidum for the pursuer's debt, without calling the rest; but the intromitter who pays, has an action of relief against the others for their share of it. If the intromitters are sued jointly, they are liable, not pro rata of their several intromissions, but pro virili.

22. 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 a 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.

1. By our ancient practice, feudal grants taken to the vassal, and to a special order of heirs, without settling the last termination upon heirs whatsoever, returned to the superior, upon failure of the special heirs therein contained: but now that fees are become patrimonial rights, the superior is, by the general opinion, held to be fully divested by such grant, and the right descends to the vassal's heirs at law. And even where a vassal dies without leaving any heir who can prove the remotest 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, est dito 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 hand. 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 declaratory; 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, subject 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 entitled to let aside such deed, in the character of ultimus heres.

3. A bastard can have no legal heirs, except those of King sue his own body; since there is no succession but by seeds as ultimus heres, the father, and a bastard has no certain father. The king therefore succeeds to him, failing his lawful issue bastard as last heir. Though the bastard, as absolute proprietor of his own estate, can dispose of his heritage in liege pothie, and of his moveables by any deed inter vivos; yet he is disfavored, ex defectu natalium, from bequeathing by testament, without letters of legitimation from the sovereign. If the bastard has lawful children, he may test without such letters, and name tutors and curators to his issue. Letters of legitimation, let their clauses be ever so strong, cannot enable the bastard to succeed to his natural father, to the exclusion of lawful heirs.

4. The legal rights of succession, being founded in Bastards, 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 cession 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 delineation, where he is specially called to the succession by an entail or testament.

5. Certain persons, though born in lawful marriage, Aliens cannot succeed in legal, but not succeed 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.

Chap. 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.

Sect. I. Nature, Division, &c. of Actions.

1. An action may be defined, A demand regularly made, and insisted in, before the judge competent, for the attainment Law of Scotland.

Part III.

taining or recovering of a right; and it suffers several divisions, according to the different natures of the rights pursued upon.

Division of actions.

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 recisory. All actions are, in the sense of this division, ordinary, which are not recisory. Recisory actions are divided, (1.) Into actions of proper improbation. (2.) Actions of reduction-improbation. (3.) Actions of simple reduction. Proper improbations, which are brought for declaring writings false or forged, are noticed below, No clxxxvi. 32. Reduction-improbation is an action, whereby a person who may be hurt or affected by a writing, inflicts for producing or exhibiting it in court, in order to have it set aside, or its effect ascertained, under the certification that the writing, if not produced, shall be declared false and forged. This certification is a fiction of law, introduced that the production of writings may be more effectually forced, and therefore it operates only in favour of the pursuer. Because the summons in the action proceeds on alleged grounds of falsehood, his majesty's advocate, who is the public prosecutor of crimes, must concur in it.

4. As the certification in this process draws after it so heavy consequences, two terms are assigned to the defenders for production. After the second term is elapsed, intimation must be made judicially to the defender, to satisfy the production within ten days; and till these are expired, no certification can be pronounced. Certification cannot pass against deeds recorded in the books of session, if the defender shall, before the second term, offer a 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 null, until they be produced; so that they recover their full force after production, even against the pursuer himself; for which reason, that process is now seldom used. Because its certification is not so severe as in reduction-improbation, there is but one term assigned to the defender for producing the deeds called for.

6. The most usual grounds of reduction of writings are, the want of the requisite solemnities; that the grantor was minor, or interdicted, or inhibited; or that he signed the deed on 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 stake 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. Aliens 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 the debtor; though the written voucher of the debt should bear a date posterior to it. Persons are accounted conjunct, 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 judgement 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 torchers 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 entitled to reduce any right granted by the debtor, after the time that the diligence is considered as abandoned.

12. A prohibited alienation, when conveyed by the receiver to another who is not privy to the fraud, suffices in the person of the bone 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 13. By act 1696, c. 5, all alienations by a bankrupt, within 60 days before his bankruptcy, to one creditor in preference to another, are reducible, at the instance even of such co-creditors as had not used the least step of diligence. A bankrupt is there described by the following characters; diligence used against him by horning and caption; and infolvency, joined either with imprisonment, retiring to the sanctuary, absconding, or forcibly defending himself from diligence. It is sufficient that a caption is raised against the debtor, though it be not executed, provided he has retired to shun it. And by the late bankrupt statute 23d Geo. III. it is declared, that in all actions and questions arising upon the construction and effect of the act 1696; when a debtor is out of Scotland, or not liable to be imprisoned by reason of privilege or personal protection, a charge of horning executed against him, together with either an 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 infolvency, be held as sufficient proof of notour bankruptcy; and from and after the last step of such diligence, the said debtor, if insolvent, shall be held bankrupt. It is provided (by said act 1696), that all heritable bonds or rights on which seisin may follow, shall be reckoned, in a question with the granter's other creditors upon this act, to be of the date of the seisin following thereon. But this act was found to relate only to securities for former debts, and not to novae debita.

14. Actions are divided into rei persecutoriae, and penal. 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 truly a sufferer in his patrimonial interest by that damage, as by the loss of the subject itself. In penal actions, which always arise ex delicto, something is also demanded by way of penalty.

15. Actions of spuizie, ejectio, and intrusion, are penal. An action of spuizie is competent to one dispossessed of a moveable subject violently, or without order of law, against the person dispossessing: not only for being restored to the possession of the subject, if extant, or for the value, if it be destroyed, but also for the violent profits, in case the action be brought within three years from the spoliation. Ejection and intrusion are, in heritable subjects, what spuizie is in moveables. The difference between the two first is, that in ejectio, 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-burrows is also penal. It proceeds on letters of law-burrows, (from borg, a cautioner), 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 fisk, 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 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, pursuer. Yet the action, if it has been commenced and litigated in the delinquent's lifetime, may be continued against the heir, though the delinquent should die during the dependence. Some actions are rei persecutoriae on the part of the pursuer, when he insists for simple restitution; which yet may be penal in respect of the defender: e.g., the action on the pallive title of vicious intromission, by which the pursuer frequently recovers the debt due to him by the deceased, though it should exceed the value of the goods intermeddled with by the defenders.

18. The most celebrated division of actions in our law is into petitory, possessory, and declaratory. Petitory actions are those, where something is demanded from the defender, in consequence of a right of property, or of credit in the pursuer: Thus, actions for restitution of moveables, actions of poinding, of forthcoming, and indeed all personal actions upon contracts or qualifications, are petitory. Possessory actions are those possessory, which are founded, either upon poission alone, as spuizies; or upon poission joined with another title, as removings; and they are competent either for getting into poission, for holding it, or for recovering it; analogous to the interdicts of the Roman law, quorum bonorum, uti poissidentis, and unde vi.

19. An action of molestation is a possessory action, competent to the proprietor of a land estate, against those who disturb his poission. 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 poission alone is competent to the action. Actions on brieves of perambulation, have the same tendency with molestations, viz., the settling of marches between contiguous lands.

20. The action of mails and duties is sometimes of mails petitionary, and sometimes possessory. In either case, it and duties 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 dilponee, for a dilpotion of lands includes a right to the mails and duties; and consequently to an adjudicator, for an adjudication is a judicial dilpotion. In the petitory action, the pursuer, since he finds poission upon the right, not poission, 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 of his competitor. In the possession, the pursuer who labels that he, his ancestors, or authors, have been seven years in possession, and that therefore he has the benefit of a possession judgement, 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 possession judgement founded on seven years possession, in consequence either of a seisin or a tack, has this effect, that though one should claim under a title preferable to that of the possessor, he cannot compete with him in the possession, till in a formal process of reduction he shall obtain the possessor's title declared void.

21. A declaratory action is that, in which some right is 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 irremovability, of expiry of the legal reverence, &c. Under this class may be also comprehended rescissory actions, which without any personal conclusion against the defender, tend simply to set aside the rights or writings libelled, in consequence of which a contrary right or immunity arises to the pursuer. Decrees upon actions that are properly declaratory confer no new right; they only declare what was the pursuer's right before, and so have a retrospect to the period at which that right first commenced. Declarators, because they have no personal conclusion against the defender, may be pursued against an apparent heir without a previous charge given him to enter to his ancestor; unless where special circumstances require a charge.

22. An action for proving the tenor, whereby a writing, which is destroyed or amissing, is endeavoured to be revived, is in effect declaratory. In obligations that are extinguishable barely by the debtor's retiring or cancelling them, the pursuer, before a proof of the tenor is admitted, must confessee on such a causa amissionis, or accident by which the writing was destroyed, as shows it was lost when in the creditor's possession; otherwise bonds that have been cancelled by the debtor on payment, might be reared up as still subsisting against him: But in writings which require contrary deeds to extinguish their effect, as affigations, dispositions, charters, &c. it is sufficient to label that they were lost, even cau fortuito.

23. Regularly no deed can be revived by this action, without some admixture in writing, referring to that which is libelled: for no written obligation ought to be raised up barely on the testimony of witnesses. If these admixtures afford sufficient conviction that the deed libelled did once exist, the tenor is admitted to be proved by witnesses, who must depose, either that they were present at signing the deed, or that they afterwards saw it duly subscribed. Where the relative writings contain all the substantial clauses of that which is lost, the tenor is sometimes sustained without witnesses. In a writing which is libelled to have contained uncommon clauses, all these must appear by the admixtures. Actions of proving the tenor are, on account of their importance, appropriated to the court of session; and, by the old form, the testimony of the witnesses could not be received but in presence of all the judges.

24. The action of double or multiple-poinding may be also reckoned declaratory. It is competent to a debtor, who is distrained, or threatened with distress, by two or more persons claiming right to the debt, and who therefore brings the several claimants into the field, in order to debate and settle their several preferences, that so he may pay securely to him whose right shall be found preferable. This action is daily pursued by an arrestee, in the case of several arrearsments sued in his hands for the same debt; or by tenants in the case of several adjudgers, all of whom claim right to the same rents. In these competitions, any of the competitors may bring an action of multiple-poinding in name of the tenant, or other debtors, without their consent, or even though they should disclaim the proceeds; since the law has introduced it as the proper remedy for getting such competitions determined: And while the subject in controversy continues in medias, any third person who conceives he has a right to it, may, though he should not be cited as a defender, produce his titles, as if he were an original party to the suit, and will be admitted for his interest in the competition. By the foreaid bankrupt statute, however, it is competent, in the case of a forthcoming or multiple-poinding raised on an arrestment sued 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 sued the form of arrestment.

25. Certain actions may be called accessory, because accessory 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 transfer of this sort, whereby an action, during the presidency of which the defender happens to die, is claimed 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. Wakening. An action is said to sleep, when it lies over not insisted in for a year, in which case its effect is suspended; but even then it may, at any time within the years of prescription, be revived or wakened by a summons, in which the pursuer recites the last step of the process, and concludes that it may be again carried on as if it had not been discontinued. An action that stands upon any of the inner-house rolls cannot sleep; nor an action in which decree is pronounced, because it has got its full completion: Consequently the decree may be extracted after the year, without the necessity of a wakening.

27. An action of transumpt falls under the same Transumpt. clas. 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 transmuted for their behoof. Though the ordinary title in this process be an obligation by the defender to grant transmutations 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 transmute them on his own charges. Actions of transmutation may be pursued before any judge-ordinary. After the writings to be transmuted are exhibited, full duplicates are made out, collated, and signed, by one of the clerks of court, which are called transmutations, and are as effectual as an extract from the register.

28. Actions proceeded anciently upon briefs issuing from the chancery, directed to the justiciary or judge-ordinary, who tried the matter by a jury, upon whose verdict judgment was pronounced: And to this day we retain certain briefs, as of inquest, terce, idiotry, tutoy, perambulation, and perhaps two or three others: But summonses were, immediately upon the institution of the college of justice, introduced in the place of briefs. A summons, when applied to actions pursued before the session, is a writ in the king's name, issuing from his signet upon the pursuer's complaint, authorizing messengers to cite the defender to appear before the court and make his defences, with certification, if he fail to appear, that decree will be pronounced against him in terms of the certification of the summons.

29. The days indulged by law to a defender, between his citation and appearance, to prepare for his defence are called inducere 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 inducere 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 29. 1672.) A summons must be executed, i.e., served against the defender, so as the last diet of appearance may be within a year after the date of the summons; and it must be called within a year after that diet, otherwise it falls for ever. Offence against the authority of the court, acts of malversation in office by any member of the college of justice, and acts of violence and 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 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 cirem effictum, in which he is entitled to refer the libel to the defender's oath.

31. One libel or summons may contain different conclusions on the same ground of right, recitatory, declarationary, 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 eliding an action. They are either dilatory, which do not enter into the cause itself, and so can only procure an abdicator 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 propounded at any time before sentence. By an 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 federunt, 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 litifcontestation. By litifcontestation 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, litifcontestation is not formed till an act is extracted, admitting the libel or defences to proof.

Sect. II. Of Probation.

1. 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 proof are competent to the party; if the proof he brings by writing be lame, he may have recourse either to witnesses or to his adversary's oath; but, if he should first take himself to the proof by oath, he cannot thereafter use any other probation (for the reason assigned par. 3.) and, on the contrary, a pursuer who has brought a proof by witnesses, on an extracted act, is not allowed to recur to the oath of the defender — Single combat, as a sort of appeal to Providence, was, by single combat; 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 authorize 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. cixxiv. 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 shopkeeper, such books, if they are regularly kept by him, supported by the testimony of a single witness, afford a semplena probatio in his favour, which becomes full evidence by his own oath in supplement. Notorial instruments and executions by messengers bear full evidence, that the solemnities therein set forth were used, not to be invalidated otherwise than by a proof of falsehood; but they do not prove any other extrinsic facts therein averred, against third parties.

3. Regularly, no person's right can be proved by his own oath, nor taken away by that of his adversary; because these are the bare averments of parties in their own favour. Put, where the matter in issue is referred by one of the parties to the oath of the other, such oath, though made in favour of the deponent himself, is decisive of the point; because the reference is a virtual contract between the litigants, by which they are understood to put the issue of the cause upon what shall be depoed: 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 depoing, inconsistent with his oath. To obviate the snares that may be laid for perjury, he 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 judges 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 pursuer, it is held as extrinsic, and must be proved aliunde. Neither can a defender who in his oath admits the constitution of a debt, get off by 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 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 februnt, 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 depoing, he shall be held pro confesso; from a presumption of his consciousness, that the fact upon which he declines to swear makes against him; but no party can be held pro confesso, if he be in the kingdom, without a previous personal citation used against him. Though an oath which resolves into a non memini, cannot be said to prove any point; yet where one to depoest up-mini oath, on 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 item, is that which the judge refers Oath in to a purfuer, for ascertaining either the quantity or the item 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 item, 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 NP clxxxiii. 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 Probation witnesse, (1.) In payment of any sum above 100l. by witnes- Scots, all which must be proved either scripto vel juramento. (2.) In all gratuitous promises, though for the rejected, smallest trifles. (3.) In all contracts, where writing is either essential to their constitution (see NP clxxiv. 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 part, 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 100l. Scots, in payments, nuncupative legacies, and verbal agreements which contain mutual obligations. And it is received to the highest extent, (1.) In all bargains which have known engagements naturally arising from them, concerning moveable goods. (2.) In facts performed in satisfaction even of a written obligation, where such obligation binds the party precisely to the performance of them. (3.) In facts which with difficulty admit of a proof by writing, even though the effect of such proof should be the extinction of a written obligation, especially if the facts import fraud or violence; thus, a bond is reducible cible ex dolo, on a proof by witnesses. Lastly, All intrusion by a creditor with the rents of his debtor's estate payable in grain, may be proved by witnesses; 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 again him, except a wife or child, who cannot be compelled to give testimony against the husband or parent, ob reverentiam personae, et metum perjurii. Though the witness, whose propinquity to one of the parties is objected to, be as nearly related to the other, the objection stands good.

13. The testimony of infamous persons is rejected, i.e., persons who have been guilty of crimes that law declares to infer infamy, or who have been declared infamous by the sentence of a judge; but infamia facti does not disqualify a witness. Pupils are inadmissible witnesses; being, in the judgment of law, incapable of the imprestions of an oath. And in general witnesses otherwise exceptional may, where there is a penury of witnesses arising from the nature or circumstances of the fact, be received cum nota; that is, their testimony, though not quite free from suspicion, is to be conjoined with the other evidence, and to have such weight given it as the judge shall think it deserves.

14. All witnesses, before they are examined in the cause, are purged of partial counsel; that is, they must declare, that they have no interest in the suit, nor have given advice how to conduct it; that they have got neither bribe nor promise, nor have been instructed how to depose; and that they bear no enmity to either of the parties. These, because they are the points put to a witness before his making oath, are called initiala 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 insisting must confess 100l. Scots, which he forfeits if he succumb. This action must have the concurrence of the king's advocate, because the conclusion of it imports perjury; and for this reason, the witness must be made a party to it.

15. The interlocutory sentence or warrant, by which parties are authorized to bring their proof, is either by way of act, or of incident diligence. In an act, the lord ordinary who pronounces it is no longer judge in the process; but in an incident diligence, which is commonly granted upon special points, that do not exhaust the cause, the lord ordinary continues judge. If a witness does not appear at the day fixed by the warrant of citation, a second warrant is granted of the nature of a caption, containing a command to messengers to apprehend and bring him before the court. Where the party to whom a proof is granted, brings none within the term allowed by the warrant, an interlocutor is pronounced, circumscribing the term, and precluding him from bringing evidence thereafter. Where evidence is brought, if it be upon an act, the lord ordinary on the act, after the term for providing 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. hominis or judicis. The first fort 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 disallowed 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. Presumptio juris are those which our law books or decisions have established, without founding any particular consequence upon them, or statuting super presumpto. Most of this kind are not proper presumptions inferred from positive facts, but are founded merely on the want of a contrary proof; thus, the legal presumptions for freedom, for life, for innocence, &c., are in effect so many negative propositions, that virtuosity, 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 fort, 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. Presumptio 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.

1. 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 the parties: every state has therefore fixed the character of final to certain sentences or decrees, which in the Roman law are called *res judicata*, and which exclude all review or rehearing.

2. Decrees of the court of session, are either *in foro contraddictoria*, 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 calculation, &c.; or where the party against whom the decree is obtained has thereafter recovered evidence sufficient to overturn it, of which he knew not before.

3. As parties might formerly reclaim against the sentences of the session, at any time before extracting the decree, no judgement was final till extracted; but now, a sentence of the inner house, either not reclaimed against within five furlongs days after its date, or adhered to upon a reclaiming bill, though it cannot receive execution till extracted, makes the judgement final as to the court of session. And by an order of the house of lords, March 24, 1725, no appeal is to be received by them from sentences of the session, after five years from extracting the sentence; unless the person entitled to such appeal be minor, clothed with a husband, *non compos mentis*, imprisoned, or out of the kingdom. Sentences pronounced by the lord ordinary have the same effect, if not reclaimed against, as if they were pronounced in presence; and all petitions against the interlocutor of an ordinary must be preferred within eight furlongs days after signing such interlocutor.

4. Decrees, in absence of the defender, have not the force of *res judicata* as to him; for where the defender does not appear, he cannot be said to have subjected himself by the judicial contract which is implied in litigantation; a party therefore may be restored against these, upon paying to the other his costs in recovering them. The sentences of inferior courts may be reviewed by the court of session,—before decree, by advocation,—and after decree, by suspension or reduction; which two last are also the methods of calling in question such decrees of the session itself, as can again be brought under the review of the court.

5. Reduction is the proper remedy, either where the decree has already received full execution by payment, or where it decrees nothing to be paid or performed, but simply declares a right in favour of the pursuer. Suspension is that form of law by which the effect of a sentence condemnatory, that has not yet received execution, is stayed or postponed till the cause be again considered. The first step towards suspension is a bill preferred to the lord ordinary on the bills. This bill, when the desire of it is granted, is a warrant for issuing letters of suspension which pass the signet; but if the preferer of the bill shall not, within 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 chargers to put up a protestation in the minute book for production of the suspension, which may be expedited at any time before this is done; and if the suspender shall allow the protestation to be extracted, the suit fails. 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 cases 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 12l. sterling value, shall be refused and remitted to the inferior judge, if competent; the suspender, however, before being heard in the inferior court, reimbursing 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 most 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 fears 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 confutation of the sums charged for. A charger, who thinks himself secure without a cautioner, and wants despatch, may, where a suspension of his diligence is sought, apply to the court to get the reasons of suspension summarily discussed on the bill.

7. Though he, in whose favour the decree suspended is pronounced, be always called the charger, yet a when commended decree may be suspended before a charge be given on petition. 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 discharging 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 degree 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, extraction 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 a 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 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 for the debt; and such subsidiary action is supported by the execution of the messenger employed by the creditor, expressing that they were charged to concur, and would not. Letters of caption contain an express warrant to the messenger, in case he cannot get access, to break open all doors and other lock-fast places.

9. Law secures peers, married women, and pupils, against personal execution by caption upon civil debts. Such commoners also as are elected to serve in parliament, are secured against personal execution by the privilege of parliament. No caption can be executed against a debtor within the precincts of the king's palace of Holyroodhouse; but this privilege of sanctuary afforded no security to criminals, as that did which was by the canon law conferred on churches and religious houses. Where the personal presence of a debtor, under caption, is necessary in any of our supreme courts, the judges are empowered to grant him a protection, for such time as may be sufficient for his coming and going, not exceeding a month. Protection from diligence is also granted by the court of session under the late bankrupt statute, where it is applied for, with concurrence of the trustee, or a certain number of the creditors, as the case may require.

10. After a debtor is imprisoned, he ought not to be indulged the benefit of the air, not even under a guard; for creditors have an interest, that their debtor 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 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, make 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 court-house, 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, he 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 an appeal. Regularly, no prisoner for debt upon letters of caption, though he should have made payment, could be released without letters of clearing a suspension, containing a charge to the jailor to set him prisoner 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 marks Scots, upon production of a discharge in which the creditor consents to his release.

11. Our law from a consideration of compassion, liberates 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 initiated by way of action, to which all the creditors of the prisoner ought to be made parties. The prisoner must, in this action, which is cognizable only by the court of session, exhibit a particular inventory of his estate, and make oath that he has no other estate than is therein contained, and that he has made no conveyance of any part of it, since his imprisonment, to the hurt of his creditors. He must also make oath, whether he has granted any disposition of his effects before his imprisonment, and confidecend 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, delinquency, 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 should 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 dyvers or bankrupts. The lords are prohibited to dispense with this habit.

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 chooses to bear the burden of the aliment rather than release him. The statute authorizing this release, which is usually called the act of grace, is limited to the case of prisoners for civil debts.

14. Decrees are executed against the moveable estate of the debtor by arrestment or poinding; and against his heritable estate, by inhibition, or adjudication. If debtor's estate 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 obtainee 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 the day of next come; therefore, where a submission is indefinite, without specifying any time, like all other contracts or obligations, it subsists for 40 years. Submissions, like mandates, expire by the death of any of the parties submitters before sentence. As arbiters are not vested with jurisdiction, they cannot compel witnesses to make oath before them, or havers of writings to exhibit them; but this defect is supplied by the court of session, who, at the suit of the arbiters, or of either of the parties, will grant warrant for citing witnesses, or for the exhibition of writing. 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 composing of differences, the powers thereby conferred on arbiters receive an ample interpretation. Decrees arbitral are not reducible upon any ground, except corruption, bribery, or falsehood.

Sect. IV. Of Crimes.

1. The word crime, in its most general sense, includes every breach either of the law of God or of our country; in a more restricted meaning, it signifies such transgressions of law as are punishable by courts of justice. Crimes were, by the Roman law, divided into public and private. Public crimes were those that were expressly declared such by some law or constitution, and which, on account of their more atrocious nature and hurtful consequences, might be prosecuted by any member of the community. Private crimes could be pursued only by the party injured, and were generally punished by a pecuniary fine to be applied to his use. By the law of Scotland, no private party, except the person injured, or his next of kin, can accuse criminally; but the king's advocate, who in this question represents the community, has a right to prosecute all crimes vindicatam 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 contrahtur. Simple negligence does not therefore constitute a proper crime. Yet where it is extremely gross, it may be punished arbitrarily. Far less can we reckon in the number of crimes, those committed by an idiot or furious person: but lesser degrees of fatuity, which only darken reason, will not afford a total defence, though they may save from the pena ordinaria. Actions committed in drunkenness are not to be considered as involuntary, seeing the drunkenness itself, which was the first cause of the action, is both voluntary and criminal.

3. On the same principle, such as are in a state of infancy, or in the confines of it, are incapable of a criminal action, dole not being incident to that age; but the precise age at which a person becomes capable of dole, being fixed neither by nature nor by statute, is by our practice to be gathered by the judge, as he best can, from the understanding and manners of the person accused. Where the guilt of a crime arises chiefly from statute, the actor, if he is under puberty, can hardly be found guilty; but, where nature itself points out its deformity, he may, if he is proximus 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, or art committed by another; which last is by civilians styled and part. opus et confititia, 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 assailing 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 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 escat 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 blest 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 seffion or of judiciary sitting in judgement. 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 pretender cannot limit the succession to it, or who hold correspondence with the pretender, or any person employed by him, are also guilty of treason.

11. The forms of proceeding in the trial of treason, whether against peers or commoners, are set forth in a small treatise, published by order of the house of lords in 1709, 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 escat, ob defectum 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 over-misprision or concealing of treason. It is inferred by one's bare knowledge of the crime, and not discovering it to a magistrate or other person entitled by his office to take examination; though he should not in the least degree assist to it. The said 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 different escat.

13. The crime of sedition consists in the raising communications or disturbances in the state. It is either verbal or real. Verbal sedition, or leafing-making, is inferred from the uttering of words tending to create discord between the king and his people. It is punished either by imprisonment, fine, or banishment, at the discretion of the judge. Real sedition is generally committed by convoking together any considerable number of people, without lawful authority, under the pretence of redressing some public grievance, to the disturbing of the public peace. Those who are convicted of this crime are punished by the confiscation of their goods; and their lives are at the king's will. If any persons, to the number of 12, shall assemble, and being required by a magistrate or constable to disperse, shall nevertheless continue together for an hour after such command, the persons disobeying shall suffer death and confiscation of moveables.

14. Judges, who, wilfully or through corruption, use their authority as a cover to injustice or oppression, in judges, are punished with the loss of honour, fame and dignity. Under this head may be classified theftbote (from boite, "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 seffion 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 resist-Deforcement made, to messengers or other officers, while they are employed in executing the law. The court of seffion 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 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 crime of the same nature with defection, 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 by him by the judge. Under this head of crimes against good government and police, may be reckoned the forfelling of markets; that is, the buying of goods intended for a public market, before they are carried there; which for the third criminal act infers the escheat of moveables; as also flaying salmon in forbidden time, destroying plough grass in time of tillage, flaying or houghing horses or cows in time of harvest, and destroying or spoiling growing timber; as to the punishment of which, see statutes 1503., c. 72.—1587., c. 82. and 1689., 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 between premeditated and sudden homicide; both are punished capitally. Casual homicide, where the actor is in some degree blamable; and homicide in self-defence, where the just bounds of defence have been exceeded; are punished arbitrarily; but the slaughter of night thieves, housebreakers, affixances in mannerly depredations, or rebels denounced for capital crimes, may be committed with impunity. The crime of demembration, or the cutting off a member, is joined with that of murder; but in practice its punishment has been restricted to the escheat of moveables, and an assylum or indemnification to the party. Mutilation, or the disabling of a member, is punished at the discretion of the judge.

18. Self-murder is as highly criminal as the killing our neighbour; and for this reason, our law has, contrary to the rule, criminis morte extinguantur, allowed a proof of the crime, after the offender's death, that his single escheat might fall to the king or his donatory. To this end, an action must be brought, not before the judiciary, but the session, because it is only intended ad 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 censures.

20. Duelling, is the crime of fighting in single combat, on previous challenges given and received. Fighting in a duel, without licence from the king, is punishable by death; and whatever person, principal or second, shall give a challenge to fight a duel, or shall accept a challenge, or otherwise engage therein, is punished by banishment and escheat of moveables, though no actual fighting should ensue.

21. Hainfuchen from haim "home," and focken "to Hainfuchseck or puruse") 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 makes it the same as that of a rape; and it is, like rape, capital by our practice. The assault must be made in the proper house of the person assaulted, where he lies and rises daily and nightly; so that neither a public house, nor even a private, where one is only transiently, falls within the law.

22. Any party to a law suit, who shall slay, wound, Battery, 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, imprisoning 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 £500 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.

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 Chap. III.

Law of Scotland.

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 echeat one of its penalties.

Bigamy.

23. Bigamy is a person's entering into the engagements of a second marriage, in violation of a former marriage vow still subsisting. Bigamy, on the part of the man, has been tolerated in many states, before the establishment of Christianity, even by the Jews themselves; but it is prohibited by the precepts of the gospel, and it is punished by our law, whether on the part of the man or of the woman, with the pains of perjury.

Incest.

26. Incest, is committed by persons who stand within the degrees of kindred forbidden in Lev. xviii. and is punished capitally. The same degrees are prohibited in affinity, as in consanguinity, Lev. xviii. 13. et seq. As this crime is repugnant to nature, all children, whether lawful or natural, stand on an equal footing: civilis ratio civilia jura corrumpere potest, non vero naturalia. It is difficult indeed to bring a legal proof of a relation merely natural, on the side of the father; but the mother may be certainly known without marriage.

Rape.

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.

Theft.

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 thief to the value of the goods stolen; heightening it gradually, from a slight corporal punishment to a capital, if the value amounted to thirty-two pennies Scots, which in the reign of David I. was the price of two sheep. In several latter acts, it is taken for granted, that this crime is capital. But where the thing stolen is of small value, we consider it not as theft but as pickery, which is punished either corporally or by banishment. The breaking of orchards, and the stealing of green wood, is punished by a fine, which rises as the crime is repeated.

29. Theft may be aggravated into a capital crime, though the value of the thing stolen be trifling; as theft twice repeated, or committed in the night, or by landed men; or of things set apart for sacred uses. The receivers and concealers of stolen goods, knowing them to be such, suffer as thieves. Tho'fe 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 echeat of moveables.

Robbery, &c.

30. Theft attended with violence is called robbery; and in our old statutes, rief or flouthrief; under which clause may be included forning, or the taking of meat and drink by force, without paying for it. Stouthrief came at last to be committed so audaciously, by bands of men associated together, that it was thought necessary to vest all our freeholders with a power of holding courts upon formers and rievers, and condemning them to death. Nay, all were capitally punished, who, to secure their lands from depredation, paid to the rievers a yearly contribution, which got the name of black mail. An act also passed, commanding to banishment a band of formers, who were originally from Egypt, called zyphyes, and adjudging to death all that should be reputed Egyptianians, 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; 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 falshood, which consists in the falsifying of writings, passes by the name of forgery. Our practice Forgery, has now of a long time, agreeably to the Roman law, made this crime capital; unless the forgery be for executions, or other writings of smaller moment; in which case, it is punished arbitrarily.

32. The writing must not only be fabricated, but put to use or founded on, in order to infer this crime. And though it be strictly criminal, yet the trial of it is proper to the court of session; but where improbation is moved against a deed by way of exception, the inferior judge, before whom the action lies, is competent to it ad civilium effectum. When it is pleaded as an exception, our practice, to discourage affected delays, obliges the defender, who moves it, to confess 40l. Scots; which he forfeits, if his plea shall appear calumniious.

33. Where a person, found guilty of forgery by the court of session is by them remitted to the judicatory, an indictment is there exhibited against him, and a jury sworn, before whom the decree of session is produced, in place of all other evidence of the crime, in respect of which the jury find the pannel guilty; so that that decree being pronounced by a competent court, is held as full proof, or, in the style of the bar, as probatio probata.

34. Perjury, which is the judicial affirmation of a Perjury, falshood on oath, really constitutes the crimen falsi; for he who is guilty of it does, in the most solemn manner, substitute falshood in the place of truth. To constitute this crime, the violation of truth must be deliberately intended by the 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 falshood. Though an oath, however false, if made upon reference in a civil question, concludes the cause, the person perjured is liable to a criminal trial; for the effect of the reference can go no 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 judicature. Subornation of perjury consists in tampering with persons who are to swear in judgement, 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 dispences. 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.

Usury. 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 authorized by law. It is divided into usura manifesta, or direct; and usura 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 of 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 a 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 wager. 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 judicature: but where the libel concludes only for voiding the debt, or restitution, the session is the proper court.

Injury. 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 twisting one with natural defects without any farcical reflections, though it be inhuman, falls under this description, as these imply no real reproach in the just opinion of mankind. Where the injurious expressions have a tendency to blacken one's moral character, or fix some particular guilt upon him, and are deliberately repeated in different companies, or handed about in whispers to confidants, it then grows up to the crime of slander: and where a person's moral character is thus attacked, the animus injuriandi is commonly inferred from the injurious words themselves, unless special circumstances be offered to take off the presumption, ex gr. that the words were uttered in judgement 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 commissaries, who, as the judices Christianitatis, are the only judges of scandal; yet, for some time past, bare verbal injuries have been tried by other criminal judges, and even by the session. It is punished either by a fine, proportioned to the condition of the persons injuring and injured, and the circumstances of time and place; or if the injury import scandal, by publicly acknowledging the offence; and frequently the two are conjoined. The calling one a bankrupt is not, in strict speech, a verbal injury, as it does not affect the person's moral character; yet, as it may hurt his credit in the way of business, it founds him in an action of damages, which must be brought before the judge-ordinary. A real injury is inflicted by any fact, by which a person's honour or dignity is affected; as striking one with a cane, or even aiming a blow without striking; spitting in one's face; assuming a coat of arms, or any other mark of distinction proper to another, &c. The composing and publishing defamatory libels may be reckoned of this kind. Real injuries are tried by the judge-ordinary, and punished either by fine or imprisonment, according to the demerit of the offenders.

40. After having shortly explained the several crimes punishable by our law, this treatise may be concluded with a few observations on criminal jurisdiction, the forms of trial, and the methods by which crimes may be extinguished. Criminal jurisdiction is founded,

1. Ratione domicilii, if the defender dwells within the territory of the judge. Vagabonds, who have no certain domicile, may be tried wherever they are apprehended.

2. Ratione delicti, if the crime was committed within the territory. Treason is triable, by the English law, in any county that the king should appoint; and, by a temporary act now expired, treason committed in certain Scots counties was made triable by the court of judicature, wherever it should fit.

41. No criminal trial can proceed, unless the person accused is capable of making his defence. Absentees are not therefore cannot be tried; nor fatuous nor furious triable persons, durante furore, even for crimes committed while they were in their senses. For a like reason, minors who had no curators, could not, by the Roman law, be tried criminally; but our practice considers every person who is capable of doing, to be also sufficiently qualified for making his defence in a criminal trial.

42. No person can be imprisoned in order to stand Commitment. trial for any crime, without a warrant in writing extre- mely preluding 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 burgess, and 600 for any other inferior person. That persons who, either from the nature of the crime with which they are charged, or from their low circumstances, cannot procure bail, may not lie for ever in prison un- tried, 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 applica- tion, 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 justici- ary, or in thirty when before any other judge; the prisoner is, upon a second application, setting forth that the legal time is elapsed, entitled to his freedom, under the same penalty.

43. Upon one's committing any of the grosser crimes, it is usual for a justice of the peace, sheriff, or other judge, to take a 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 autho- rized to receive informations, concerning crimes to be tried in the circuit-courts; which informations are to be transmitted to the justice-clerk 40 days before the sitting of the respective courts. To discourage ground- less criminal trials, all prosecutors, where the defend- er 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 ad- vocate was the only pursuer, his informer was made liable. This sufficiently warrants the present practice of condemning vexatious prosecutors in a pecuniary mulet, though far exceeding the statutory sum.

44. The forms upon trial in 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 infe- rior courts. The trial of crimes proceeds either upon indictment, which is sometimes used when the person to be tried is in prison; or by criminal letters issuing from the signet of the justiciary. In either case, the defender must be served with a full copy of the indict- ment 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 pri- vate prosecutor must give security, at raising the let- ters, that he will report them duly executed to the justiciary, in terms of 1535, c. 35.; and the defender, if he be not already in prison, is, by the letters, re- quired 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 punish- ment he ought to suffer, is called the libel. All libels must be special, setting forth the particular facts in- ferring the guilt, and the particular place where these facts were done. The time of committing the crime may be labelled in more general terms, with an alter- native as to the month, or day of the month: but as it is not practicable, in most cases, to label upon the precise circumstances of accession that may appear in proof, libels against accessories are sufficient, if they 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 de- fences 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 justi- ciary, are peremptory: the criminal letters must be ap- pearance called on the very day on which the defender is cited: and hence, if no accuser appears, their effect is lost, inflanitia peritis, and new letters must be raised. If the libel, or any of the executions, shall fall 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, defer 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 escutcheon falls. The defender, after his appearance in court is called the pannel.

48. The two things to be chiefly regarded in a cri- minal 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 Probation defender's oath; for no person is compellable to swear of crimes 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 infamy, which may be proved proved by the usurer's own oath, notwithstanding the rule, *Nemo tenetur jurare in fiam carpitudinem*. Crimes therefore are in the general case proveable only by the defendant's free confession, or by writing, or by witnesses. No extrajudicial confession, unless it is adhered to by the panel 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 panel, where the king's advocate is the only prosecutor, if from the nature of the crime, there must needs be a penalty 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 judgement 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 panel, as for him. Juries cannot be punished on account of an erroneous verdict, either for or against the panel.

52. Though the proper business of a jury be to inquire into the truth of the facts found relevant by the court, for which reason they are sometimes called the *inquest*; yet, in many cases, they judge also in matters of law or relevancy. Thus, though an objection against a witness should be repelled by the court, the jury are under no necessity to give more credit to his testimony than they think just: And in all trials of art and part, where special facts are not labelled, the jury, if they return a general verdict, are indeed judges not only of the truth, but the relevancy of the facts that are sworn to by the witnesses. A general verdict, is that which finds in general terms, that the panel is guilty or not guilty, or that the libel or defences are proved or not proved. In a special verdict, the jury find certain facts proved, the import of which is to be afterwards considered by the court.

53. Criminal judges must now suspend for some time the execution of such sentences as affect life or limb, that so condemned criminals, whose cases deserve favour, may have access to apply to the king for mercy. No sentence of any court of judicature, south of the river Forth, importing either death or demembration, can be executed in less than 30 days; and, if north of it in less than 40 days, after the date of the sentence. But corporal punishments, less than death or dismembering, e.g. whipping, pillory, &c. may be inflicted eight days after sentence on this side Forth, and twelve days a ter sentence beyond it.

54. Crimes are extinguished, 1. By the death of the criminal: both because a dead person can make no defence, so that his trial is truly a judging upon the hearing of one side; and because, though his guilt should be ever so notorious, he is after death carried beyond the reach of human penalties: Such trials therefore can have no effect, but to punish the innocent heir, contrary to that most equitable rule, *Culpa tenet furores*. 2. Crimes may be extirpated by a remission from the sovereign. But a remission, though it secures the delinquent from the public resentment, the exercise of which belongs to the crown, cannot cut off the party injured from his claim of damages, over which the crown has no prerogative. Whoever therefore founds on a remission, is liable in damages, to the private prosecutor, in the same manner as if he had been tried and found guilty. Even general acts of indemnity passed in parliament, though they secure against such penalties as law inflicts upon the criminal merely *per modum pene*, 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, *Diffimulatione tollitur injuria*. But where the offence is of a higher nature, the party injured, though he may pass from the prosecution, in so far as his private interest is concerned, cannot preclude the king's advocate, or procurator-fiscal, from inflicting *ad vindicatam publicam*.

56. Crimes are also extinguished by prescription, *Prescrip-*, 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 housebreaking, 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. ## INDEX

**A.** - **Accessories**, what, p. 617, 696 - **Act of grace**, 695 - **Actions**, nature of, different sorts of, 687 - **Adjudications**, what, 689 - **Administrators**, what, 659 - **Admiralty**, court of, 690 - **Adultery**, 627 - **Alienation by deed**, what, record, special custom, devise, 698 - **Arraignment**, what, 607 - **Arbiters**, 608 - **Arrests**, what, 621 - **Assignations**, account of, 696

**B.** - **Bail and commitment**, what, 621 - **Bankrupt estates**, sale of, 661 - **Baron**, definition of a, 628 - **Bastards incapable of legal succession**, 687 - **Battery**, 698 - **Bigamy**, 699 - **Bishops**, jurisdiction of, 631 - **Blasphemy**, 697 - **Borough**, definition of, 628 - **Breach of arrestment**, 698 - **Bribery**, 691 - **Bill of constitution**, 586

**C.** - **Caption**, 695 - **Cautionary**, what, 669 - **Cessio bonorum**, 695 - ** Chattels**, dispossession of, 613 - **Circumduction**, 693 - **Civil society**, what, 585 - **Clergy**, of the, benefit of, what, 601 - **Combat**, single, probation by, 622 - **Commitment**, 691 - **Common law**, what, three kinds of, 700 - **Conviction**, what, 590 - **Corporations**, what, 602 - **Corruption in judges**, 607 - **Courts**, ecclesiastical, of special jurisdiction, of the cognizance of private wrongs, commissary, 611 - **Crime**, definition, &c., of, probation of, extinction of, prescription of, 631

**D.** - **Decrees**, 694 - **Defences**, 691 - **Deforcement**, 607 - **Demurrer**, what, 615 - **Dicts of appearance**, 701 - **Disturbance**, what, 614 - **Duelling**, ib., 698 - **Dyspepsis habit**, 695

**E.** - **Entry by inventory**, what, hasp and staple, a precept of claire constat, 682 - **Equity**, what, 589 - **Estates in possession**, what, upon condition, in reversion, in fealty, &c., 605 - **Exchequer**, court of, 606 - **Execution**, what, 627 - **F.** - **Falsehood**, 616 - **Feloniens**, what, 603 - **Fictio juris**, 609 - **Forefalling**, 608 - **Forgery**, 609 - **Freehold estates**, what, 604

**G.** - **God**, offences against, 617 - **Government**, what, different forms of, 585 - **Guardian**, what, 602

**H.** - **Haimischen**, 698 - **Heir apparent**, description of an, 681 - **Hereditaments**, corporeal, incorporeal, 603

**I.** - **Imprisonment**, wrongful, 698 - **Incest**, ib., 699 - **Individuals**, offences against, habitations of, offences against, 619 - **Inhibitions**, account of, 620 - **Injury**, 658 - **Interdictions**, registration of, 700 - **Judges**, jurisdiction of, by whom named, 638

**J.** - **Judges**, qualifications of, 626 - **Jury**, 702 - **Justice**, college of, offences against, 626

**K.** - **Kindred**, degrees of, forbidden to marry, 632 - **King**, title of the, family of the, councils belonging to the, duties of the, prerogative of the, revenue of the, 599

**L.** - **Laws**, nature of, in general, of revelation, of nations, municipal, interpretation of, of England, civil, canon, written, 582 - **Lawsuit**, Lord of regality, what, Lyon king at arms, office of, 583 - **Lawsuit**, Lord of regality, what, Lyon king at arms, office of, 584

**M.** - **Magistrates**, subordinate, 601 - **Mandate**, definition of, 668 - **Marriage**, nature of, 634 - **Majors**, description of, 602 - **Minors**, tutors of, 635 - **Misprision of treason**, 697 - **Misprisions**, what, 618 - **Murder**, 698

**N.** - **Nuisance**, what, 613

**O.** - **Oaths**, probation by, 692 - **Obligations and contracts**, dissolution of, 667

**P.** - **Parent**, description of a, 601 - **Parliament**, of the, 599 - **Patricide**, 698 - **Patronage**, account of, 629 - **People**, of the, whether natives, &c., 601 - **Perjury**, 699 - **Personal property**, injuries done to, 612 - **Persons**, rights of, capable of committing crimes, 617 - **Pleadings**, what, 615

**Poindings**, 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 ferocity; being introduced under the auspices of William the Norman, and his sons: whereby the observation of the Roman satirist was once more verified, that *Gallia caudicibus docuit facundia Britannos*. This continued till the reign of Edward III.; who, having employed his arms successfully in subduing the crown of France, thought it unbecoming the dignity of the victors to use any longer the language of a vanquished country. By a statute, therefore, passed in the 36th year of his reign, it was enacted, that for the future all pleas should be pleaded, shown, defended, answered, debated, and judged, in the English tongue; but be entered and enrolled in Latin: In like manner as Don Alonso X. king of Castile (the great-grandfather of our Edward III.) obliged his subjects to use the Castilian tongue in all legal proceedings; and as, in 1286, the German language was established in the courts of the empire. And perhaps, if our legislature had then directed that the writs themselves, which are mandates from the king to his subjects to perform certain acts as 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 practisers, 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 Englishman (with a week's preparation) would understand the laws of Normandy, collected in their grand confumier, 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 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 seisinment: it is therefore to be imputed as much to necessity as ignorance, that they were styled in our forensic dialect, confabularium, recordum, and seisinmentum. Thus again, another uncoast 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 unclassical it may seem, was necessarily framed to express a particular offence; since no other word in being, occedere, 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 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 fidei commissarios, φιλος παραστατης; cubiculum; καμαρα; filium-familias, παιδα-φαμιλιας; repudium, γενεθλιος; compromifium, καταπατησιον; reverentia et obsequium, ευερεια και συνεργεια; and the like. They studied more the exact and precise import of the words, than the neatness and delicacy of their cadence. And it may be suggested, that the terms of the law are not more numerous, more uncouth, or more difficult to be explained by a teacher, than those of logic, physics, and the whole circle of Aristotle's philosophy; nay, even of the politer art of architecture and its kindred studies, or the science of rhetoric itself. Sir Thomas More's famous legal question contains in it nothing more difficult, than the definition which in his time the philosophers currently gave of their materia prima, the groundwork of all natural knowledge; that it is neque quid, neque quantum, neque quale, neque aliquid eorum quibus ens determinatur; or its subsequent explanation by Adrian Heereboord, who affirms us, that materia prima non est corpus, neque per formam corporeitatis, neque per simplicem efficiam: est tamen ens, et quidem sublata, liceat incompulta; habetque aetiam ex se entitativum, et simul est potentia subjactiva. The law, therefore, with regard to its technical phrases, stands upon the same footing with other studies, and requests only the same indulgence.

This technical Latin continued in use from the time of its first introduction, till the subversion of our ancient constitution under Cromwell: when, among many other innovations in the law, some for the better and some for the worse, the language of our records was altered and turned into English. But, at the restoration of King Charles, this novelty was no longer countenanced; the practitioners finding it very difficult to express themselves so concisely or significantly in any other language but the Latin. And thus it continued without any sensible inconvenience till about the year 1739, when it was again thought proper that the proceedings at law should be done into English, and it was accordingly so ordered by statute 4 Geo. II. c. 26. This was done, in order that the common people might have knowledge and understanding of what was alleged or done for and against them in the process and pleadings, the judgement and entries in cause. Which purpose it is doubtful how well it has answered; but there is reason to suspect, that the people, are now, after many years experience, altogether as ignorant in matters of law as before. On the other hand, these inconveniences have already arisen from the alteration; that now many clerks and attorneys are hardly able to read, much less to understand, a record even of so modern a date as the reign of George I. And it has much enhanced the expense of all legal proceedings; for since the practitioners are confined (for the sake of the stamp duties, which are thereby considerably increased) to write only a stated number of words in a sheet; and as the English language, through the multitude of its particles, is much more verbose than the Latin; it follows, that the number of sheets must be very much augmented by the change. The translation also of technical phrases, and the names of writs and other processes, were found to be so very ridiculous (a writ of nisi prius, quare impedit, fieri facias, habeas corpus, and the rest, not being capable of an English drefs with any degree of seriousness), that in two years time a new act was obliged to be made, 6 Geo. II. c. 14, which allows all technical words to continue in the usual language, and has thereby defeated every beneficial purpose of the former statute.

Trial by Wager of Law, (vadiatio legis;) a species of trial, in the English law, so called, as another species is styled "wager of battle," vadiatio duelii, (see Battle;) because, as in the wager of battle, the defendant gave a pledge, gage, or vadium, to try the cause by battle; so here he was to 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 tells 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 judiciously states, charges as being the source of frequent perjury. This, lib. ix. c. i., 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 forfeit 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 hardiness 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 affront; 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 option of debt for recovering it, it is usual to add, "in which no wager of law shall be allowed;" otherwise a hardy delinquent might escape any penalty of the law, by swearing he had never incurred, or else had discharged it.

Custom-House Laws. The expedient of exacting duties on goods imported, or exported, has been adopted by every commercial nation in Europe. The attention of the British legislature has not been confined to the object of raising a revenue alone, but they have attempted by duties, exemptions, drawbacks, bounties, and other regulations, to direct the national trade into those channels that contribute most to the public benefit. And, in order to obtain every requisite information, all goods, exported or imported, whether liable to duty or not, are required to be entered at the respective custom-houses; and, from these entries, accounts are regularly made up of the whole British trade, distinguishing the articles, their quantity and value, and the countries which supply or receive them.

The objects of the British legislature may be reduced to the following heads:

First, To encourage the employment of British shipping and seamen, for the purpose of supplying our navy when public exigencies require.

Secondly, To increase the quantity of money in the nation, by prohibiting the exportation of British coin, by encouraging exportation, and discouraging importation, and by promoting agriculture, fisheries, and manufactures. For these purposes, it is penal to entice certain manufacturers abroad, or export the tools used in their manufactures: the exportation of raw materials is, in most instances, prohibited; and their importation permitted free from duty, and sometimes rewarded with a bounty. The exportation of some goods, manufactured to a certain length only (for example white cloth), is loaded with a duty, but permitted duty free when the manufacture is carried to its full extent. The importation of rival manufactures is loaded with heavy duties, or absolutely prohibited. These restrictions are most severe towards nations with which the balance of trade is supposed against us, or which are considered as our most formidable rivals in power or commerce. Upon this principle the commerce with France, till lately, laboured under the heaviest restrictions.

Thirdly, To secure us plenty of necessaries for subsistence and manufacture, by discouraging the exportation of some articles that consume by length of time, and regulating the corn trade according to the exigencies of the seasons.

Fourthly, To secure the trade of the colonies to the mother country, and preserve a mutual intercourse, by encouraging the produce of their staple commodities; and restraining their progress in these manufactures which they receive from us in exchange.

The foundation of our commercial regulations is the famous act of navigation, which was first enacted during the time of the Commonwealth, and adopted by the first parliament after the Restoration. The substance of this act, and subsequent amendments, is as follows:

1. Goods from Asia, Africa, and America, may not be imported, except in British ships duly navigated, or ships belonging to the British plantations; and they can only be imported from the place of their production or manufacture, or the port where they are usually first shipped for transportation. Goods of the Spanish or Portuguese plantations, imported from Spain and Portugal in British ships, bullion, and some other inconsiderable articles, are excepted.

The restriction on European goods is not universal, but extends to several of the bulkiest articles. Russian goods, masts, timber, boards, salt, pitch, rosin, tar, hemp, flax, raisins, figs, prunes, olives, oil, corn, sugar, potashes, wine, and vinegar, may not be imported, except in ships belonging to Great Britain or Ireland, legally manned; nor Turkey goods and currants, except in ships British built; or in ships belonging to the country where these goods are produced or manufactured, or first shipped for exportation, and, if imported in foreign ships, they pay alien's duty.

In order to entitle 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, sulfur, and other dying wood, molasses, hemp, copper ore, beaver skins and other furs, pitch, tar, turpentine, nails, yards, and bolts, coffee, pimento, cocoanuts, 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 build 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. Shipmasters must deliver copies of this manifest to the first customhouse 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 customhouse at their arrival, and make report of their cargo upon LAW

If the report disagree with the manifest, or either disagree with the cargo on board, the shipmaster is liable in the penalty of £203. The proprietors of the goods must enter them, and pay the duties within 20 days; otherwise they may be carried to the customhouse, and sold by auction, if not relieved within six months; and the overplus of the value, after paying duty and charges, paid to the proprietors.

3. The importation of cattle, beef, mutton, and pork, except from Ireland, woollen cloths, malt, and various articles of hardware, cutlery, and earthen ware, is prohibited: Also the following goods from Germany and the Netherlands: olive oil, pitch, tar, potashes, rosin, salt, tobacco, wines, except Rhennish wine, and Hungary wines from Hamburg.

4. The importation of various other goods is restricted by particular regulations, respecting the time and place of importation, the packages, the burden of the ship, the requisition of a licence, and other circumstances.

To guard more effectually against clandestine trade, the importation of some articles is only permitted in ships of a certain burden, whose operations are not easily concealed. Spirits must be imported in ships of 100 tons or upwards, except rum, and spirits of British plantations, which are only restricted to 70 tons; wine, 60 tons; tea, tobacco, and snuff, 50 tons; salt, 40 tons. Wine, spirits, and tobacco are also restricted in respect of the packages in which they may be imported.

5. Diamonds and precious stones, flax, flax seed, linen rags, beaver wool, wool for clothiers, linen yarn unbleached, and most drugs used in dyeing, may be imported duty free.

6. All goods imported are liable to duties, except such as are expressly exempted. The revenue of customs is of great antiquity in Britain, but was remodelled 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 customhouse 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 particular kinds; some according to the rates, some connected 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, corn, braids, copper, engines for knitting stockings, tools for cotton, linen, woollen, silk, iron and steel manufactures, wool, woollens, woolen 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.

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 24s. 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 30s. per ton. Vessels employed in the herring fishery receive 20s. per ton, besides a bounty on the herrings caught and cured, amounting in some cases to 4s. 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 customhouse 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 often been a subject of discussion.

Mercantile Laws. The laws relating to commercial Maritime and maritime affairs approach nearer to uniformity through the different countries of Europe, than those on other subjects. Some of the fundamental regulations have been taken from the Roman law; others have been suggested by experience, during the progress of commerce; and the whole have been gradually redacted 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 Visby, 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 five 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 Maritime Law 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 master 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 sail 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 it return; and the whole is lost if the ship be lost on the return.

If a certain sum be specified for the homeward voyage, it is due, although the factor abroad should have no goods to send home.

In the case of a ship freighted to Madeira, Carolina, and home, a particular freight fixed for the homeward ward voyage, and an option reserved for the factor at 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 is 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 master 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, clothes 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 a 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 leak 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 disbursements.

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 entitled to any contribution.

The essential circumstances that constitute a general average are these; the loss must be the effect of a voluntary action; and the object of that action the common safety of the whole. Quarantine, which is allowed, seems not to fall within this description.

4. Quarantine. See QUARANTINE.

5. Wrecks. See WRECK.

6. Impress. See IMPRESSING.

7. Insurance. See INSURANCE. Game-Laws. See the article Game.

Sir William Blackstone, treating of the alterations in our laws, and mentioning franchises granted of chace and free warren, as well to preserve the breed of animals, as to indulge the subject, adds, "From a familiar principle to which, though the forest laws are now mitigated, and by degrees grown entirely obsolete; yet from this root has sprung a bastard fief, known by the name of the game law, now arrived to and wantoning 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 chace or free warren, might kill game in every part of his franchise; but now, though a freeholder of less than 100l. a year is forbidden to kill partridge upon his own estate, yet nobody else (not even the lord of the manor, unless he hath a grant of free warren) can do it without committing a trespass and subjecting himself to an action.

Under the article Game, the destroying such beasts and fowls as are ranked under that denomination, was observed (upon the old principles of the forest law) to be a trespass and offence in all persons alike, who have not authority from the crown to kill game (which is royal property) by the grant of either a free warren, or at least a manor of their own. But the laws called the game laws have also inflicted additional punishments (chiefly pecuniary) on persons guilty of this general offence, unless they be people of such rank or fortune as is therein particularly specified. All persons, therefore, of what property or distinction soever, that kill game out of their own territories, or even upon their own estates, without the king's licence expressed by the grant of a franchise, are guilty of the first original offence of encroaching on the royal prerogative. And those indigent persons who do so, without having such rank or fortune as is generally called a qualification, are guilty, not only of the original offence, but of the aggravations also created by the statutes for preserving the game; which aggravations are so severely punished, and those punishments so implacably inflicted, that the offence against the king is seldom thought of, provided the miserable delinquent can make his peace with the lord of the manor. The only rational footing upon which this offence, thus aggravated, can be considered as a crime, is, that in low and indigent persons it promotes idleness, and takes them away from their proper employments and callings: which is an offence against the public police and economy of the commonwealth.

The statutes for preserving the game are many and various, and not a little obscure and intricate; it being remarked, that in one statute only, 5 Ann. c. 14, there is false grammar in no fewer than five places, besides other mistakes: the occasion of which, or what denomination of persons were probably the penmen 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 100l. 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 150l. 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 unlawful times of the year, or unlawful hours of the day or night, on Sundays or on Christmas day, there are various penalties affixed, 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 license, on pain of 10l. stat. 11 Hen. VIII. c. 13. If any person shall take or kill any pheasants or partridges with any net in the night time, they shall forfeit 20s. for every pheasant, and 10s. for every partridge taken: and hunting with spaniels in standing corn, incurs a forfeiture of 40s. 23 Eliz. c. 10. Those who kill any pheasant, partridge, duck, heron, hare, or other game, are liable to a forfeiture of 20s. for every fowl and hare; and selling, or buying to sell again, any hare, pheasant, &c., the forfeiture is 10s. for each hare, &c. 1 Jac. I. c. 17. Also pheasants or partridges are not to be taken between the fifth 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 fined for trespass. If officers of the army or soldiers kill game without leave, they forfeit 5l. an officer, and 10s. a soldier; 4 and 5 W. and M. c. 23. Higglerers, chapmen, carriers, innkeepers, victuallers, &c. having in their custody hare, pheasant, partridge, heath game, &c. (except fent by some person qualified to kill game), shall forfeit for every hare and fowl 5l. to be levied by distress and sale of their goods, being proved by one witness, before a justice; and for want of distress shall be committed to the house of correction for three months: one moiety of the forfeiture to the informer, and the other to the poor. And selling game, or offering the same to sale, incurs the like penalty; where- in 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 the first of September, they shall forfeit £5 for every fowl; § Ann. c. 14. § 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 and 22 Car. II. c. 25, and 33 Hen. 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 £1, or be sent to the house of correction for three months; and the dogs, game, &c., shall be taken from them, by the statute § 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 § 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 2 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 § Ann. c. 14, on higgler, &c., offering game to sale; and game found in the house or possession of a poulterer, aleman, fishmonger, cook, or pastry cook, is deemed exposing thereof to sale.

By 2 Geo. III. c. 19, after the first 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 abetting 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 fasting and summering, or use any gun, &c., for destroying game, he shall for the first offence be imprisoned for any time not exceeding six nor less than three months; if guilty of a second offence, after conviction of a first, to be imprisoned for any time not exceeding 12 months nor less than six; and shall also within three days after the time of his commitment, either for the first or for any other offence, be once publicly whipped.

By 25 George III. c. 50, and 31 George III. c. 21, every person in Great Britain (the royal family excepted), who shall, after July 1, 1785, use any dog, gun, net, or other engine, for the taking or destruction of game (not 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 2l. 2s. (and an additional 1l. 1s. by 31 George II. c. 21.) making in the whole 3l. 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 1l. 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 20l.—Every certificate to bear date the day when issued, and to continue in force till 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. Gamekeepers were first introduced by the qualification act, 22 and 23 Car. II. c. 25, and subsequent statutes have made a number of various regulations respecting them. This authorises lords of manors of the degree of esquire, to appoint gamekeepers, who shall have power, within the manor, to seize guns, nets, and engines, kept by unqualified persons to destroy game.

By 5 Ann. c. 14, f. 14, lords and ladies of manors are authorised to empower their gamekeepers to kill game; but prohibited the latter, under pain of three months imprisonment, from selling or disposing of the game so killed, without the consent of the lord or lady, under whose appointment they acted.

By 3 Geo. I. c. 11, no lord of a manor is to appoint any person to be a gamekeeper, with power to take and kill game, unless such person be qualified by law so to do, or be truly and properly a servant to the lord, or immediately employed to take or kill game, for the sole use or benefit of the said lord. Offences against this act to be punished with pecuniary fines.

Gamekeepers are enumerated among the different descriptions of servants, chargeable with the duty under 25 Geo. III. c. 43.

If any gamekeeper, who shall have registered his deputation, and taken out a certificate thereof, shall be changed, and a new gamekeeper appointed in his stead, the first certificate is declared null and void, and the person acting under the same, after notice, is liable to the penalty of 20l. And any person in pursuit of game, who shall refuse to produce his certificate, or to tell his name or place of abode, or shall give in any false or fictitious name or place of abode to any person requiring the same, who shall have obtained a certificate, is liable to the penalty of 50l.

The certificates are not to authorize persons to kill game at any time prohibited by law, nor to give any person any right to kill game, unless such person shall be qualified so to do by the laws now in being, but shall be liable to the same penalties as if this act had not passed. [So that though by this act qualified and unqualified persons are equally included, yet having a certificate does not give an unqualified person a right to kill game: the point of right still stands upon the former acts of parliament; and any unqualified person killing game without a certificate, is not only liable to the penalty inflicted by this act, but also to all the former penalties relating to the killing of game, &c.]

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 appointments 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.

By 40 Geo. III. c. 50, persons to the number of two or more, found in any field, &c. or other open or inclosed ground, between eight at night and six in the morning, from the first day of October to the first of February, or between the hours of ten at night and four in the morning, from first February to first October, in each and every year, having any gun or engine to kill or take any hare, pheasant, partridge, heath-fowl, commonly called black game, or grouse, commonly called red game, or any other game; or persons aiding them with offensive weapons, may be apprehended, and, on conviction before a justice, shall be deemed rogues and vagabonds, within the meaning of 17 Geo. III. c. 5, &c.

Military Law. See Military and Marine.

Law, John, the famous projector, was the eldest son of a goldsmith 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, but when a very young man, to recommend himself to the king's ministers in Scotland to arrange 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 fort of tone 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 run 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 most singular 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 Desmarets 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 LAW

He also, whilst at Christ college, undertook and went through a very laborious part in preparing for the press an edition of Stephens's Thesaurus. His acquaintance, during this his first residence in the university, was principally with Dr Waterland, the learned master of Magdalen college; Dr Jortin, a name known to every scholar; and Dr Taylor, the editor of the Demosthenes.

In the year 1757 he was presented by the university to the living of Graylock in the county of Cumberland, a rectory of about 300l. a-year. The advowson of this benefice belonged to the family of Howards of Graylock, but devolved to the university, for this turn, by virtue of an act of parliament, which transfers to the two bodies the nomination to such benefices as appertain, at the time of the vacancy, to the patronage of a Roman Catholic. The right, however, of the university was contested; and it was not till after a law suit of two years continuance that Mr Law was settled in his living. Soon after this, he married Mary the daughter of John Christian, Esq., of Unerigg, in the county of Cumberland; a lady whose character is remembered with tenderly and esteem by all who knew her.

In 1743, he was promoted by Sir George Fleming, bishop of Carlisle, to the archdeaconry of that diocese; and in 1746 went from Graylock to reside at Salkeld, a pleasant village upon the banks of the river Eden, the rectory of which is annexed to the archdeaconry. Mr Law was not one of those who lofe and forget themselves in the country. During his residence at Salkeld, he published Considerations on the Theory of Religion: to which were subjoined, Reflections on the Life and Character of Christ; and an Appendix concerning the use of the words Soul and Spirit in holy Scripture, and the state of the dead there described.

Dr Keene held at this time, with the bishopric of Chester, the mastership of Peterhouse in Cambridge. Desiring to leave the university, he procured Dr Law to be elected to succeed him in that station. This took place in the year 1756; in which year Dr Law resigned his archdeaconry in favour of Mr Eyre, a brother-in-law of Dr Keene. Two years before this, he had proceeded to his degree of doctor of divinity: in his public exercise for which, he defended the doctrine of what is usually called the "sleep of the soul."

About the year 1760, he was appointed head librarian of the university; a situation which, as it procured an easy and quick access to books, was peculiarly agreeable to his taste and habits. Some time after this, he was also appointed cathedral professor. In the year 1762, he suffered an irreparable loss by the death of his lady; a loss in itself every way afflicting, and rendered more so by the situation of his family, which then consisted of eleven children, many of them very young. Some years afterwards, he received several preferments, which were rather honourable expressions of regard from his friends, than of much advantage to his fortune.

By Dr Cornwallis, then bishop of Litchfield, afterwards archbishop of Canterbury, who had been his pupil at Christ college, he was appointed to the archdeaconry of Staffordshire, and to a prebend in the church of Litchfield. By his old acquaintance Dr Green, bishop of Lincoln, he was made a prebendary of of that church. But in the year 1767, by the intervention of the duke of Newcastle, to whose interest in the memorable contest for the high stewardship of the university, he had adhered in opposition to some temptations, he obtained a stall in the church of Durham. The year after this, the duke of Grafton, who had a short time before been elected chancellor of the university, recommended the matter of Peterhouse to his majesty for the bishopric of Carlisle. This recommendation was made not only without solicitation on his part or that of his friends, but without his knowledge, until the duke's intention in his favour was signified to him by the archbishop.

About the year 1777, Bishop Law gave to the public a handsome edition, in three volumes quarto, of the works of Mr Locke, with a Life of the Author, and a Preface. Mr Locke's writings and character he held in the highest esteem, and seems to have drawn from them many of his own principles: He was a disciple of that school. About the same time he published a tract, which engaged some attention in the controversy concerning subscription; and he published new editions of his two principal works, with considerable additions, and some alterations.

Dr Law held the see of Carlisle almost 19 years; during which time he twice only omitted spending the summer months in his diocese at the bishop's residence at Rose Castle; a situation with which he was much pleased, not only on account of the natural beauty of the place, but because it restored him to the country in which he had spent the best part of his life. In the year 1787 he paid this visit in a state of great weakness and exhaustion; and died at Rose Castle about a month after his arrival there, on the 14th day of August, and in the 84th year of his age.

The life of the bishop of Carlisle was a life of incessant reading and thought, almost entirely directed to metaphysical and religious inquiries. Besides the works already mentioned, he published, in 1734 or 1735, a very ingenious Inquiry into the Ideas of Space, Time, &c., in which he combats the opinions of Dr Clarke and his adherents on these subjects: but the tenet by which his name and writings are principally distinguished, is "that Jesus Christ, at his second coming, will, by an act of his power, restore to life and consciousness the dead of the human species, who by their own nature, and without this intervention, would remain in the state of infidelity to which the death brought upon mankind by the sin of Adam had reduced them." He interpreted literally that laying of St Paul, 1 Cor. xv. 21. "As by man came death, by man came also the resurrection of the dead." This opinion had no other effect upon his own mind than to increase his reverence for Christianity, and for its divine Founder. He retained it, as he did his other speculative opinions, without laying, as many are wont to do, an extravagant stress upon their importance, and without pretending to more certainty than the subject allowed of. No man formed his own conclusions with more freedom, or treated those of others with greater candour and equity. He never quarrelled with any person for differing from him, or considered that difference as a sufficient reason for questioning any man's sincerity, or judging meanly of his understanding. He was zealously attached to religious liberty, because he thought that it leads to truth; yet from his heart he loved peace. But he did not perceive any repugnancy in these two things. There was nothing in his elevation to his bishopric which he spoke of with more pleasure, than its being a proof that decent freedom of inquiry was not discouraged.

He was a man of great softness of manners, and of the mildest and most tranquil disposition. His voice was never raised above its ordinary pitch. His countenance seemed never to have been ruffled; it preserved the same kind and composed aspect, truly indicating the calmness and benignity of his temper. He had an utter dislike of large and mixed companies. Next to his books, his chief satisfaction was in the serious conversation of a literary companion, or in the company of a few friends. In this sort of society he would open his mind with great unrestrainedness, and with a peculiar turn and sprightliness of expression. His person was low, but well formed: his complexion fair and delicate. Except occasional interruptions by the gout, he had for the greatest part of his life enjoyed good health; and when not confined by that distemper, was full of motion and activity. About nine years before his death, he was greatly enfeebled by a severe attack of the gout in his stomach; and a short time after that, lost the use of one of his legs. Notwithstanding his fondness of exercise, he resigned himself to this change, not only without complaint, but without any sensible diminution of his cheerfulness and good humour. His fault (for we are not writing a panegyric) was the general fault of retired and studious characters, too great a degree of inaction and facility in his public duties. The modesty, or rather bashfulness of his nature, together with an extreme unwillingness to give pain, rendered him sometimes less firm and efficient in the administration of authority than was requisite. But it is the condition of human morality. There is an opposition between some virtues which seldom permits them to subsist together in perfection.

The bishop was interred in his cathedral church, in which a handsome monument is erected to his memory.